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BEATING THE TIMER: STATUTES OF LIMITATIONS AND THE DISCOVERY RULE IN PERSONAL INJURY ACTION

Most people are vaguely aware that there are deadlines associated with the filing of a lawsuit. In general these ‘deadlines’ can be classed under the moniker of statutes of limitation. As the Supreme Court has explained, statutes of limitation are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. Order of R.R. Telegraphers v. Ry. Express Agency, Inc., 321 U.S. 342, 348-49 (1944). Statutes of limitation require that a cause of action be brought, e.g. filed, within a specified period after the day the cause of action accrues. See e.g. TEX. CIV. PRAC. & REM. CODE ‰16.002 “16.004, 16.051.

The Texas Civil Practice and Remedies Code expressly provides for a 2-year statute of limitations as to claims for personal injuries. See TEX. CIV. PRAC. & REM. CODE 16.003. In most cases, a personal injury cause of action accrues when a wrongful act causes an injury. Childs v. Haussecker, 974 S.W.2d 31, 40 (Tex. 1998). Thus, for example, the statute of limitations would generally begin to run as to an automobile accident on the date that the accident occurred, not some later date when a party might learn that he had been injured. In some circumstances, however, the so-called ‘discovery rule’ may operate to defer the accrual of such an action until a later date that an injury is discovered.
Under Texas law, the ‘discovery rule’ provides a very limited exception to statutes of limitations. Computer Assocs. Intl, Inc., v. Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996).

While accrual of a Texas personal injury action generally occurs when a wrongful act causes an injury, regardless of when the plaintiff learns of that injury, the judicially-crafted discovery rule defers accrual of the cause of action if the nature of the injury incurred is inherently undiscoverable and the evidence of injury is objectively verifiable. Childs v. Haussecker, 974 S.W.2d 31, 36-37 (Tex. 1998). In such a circumstance, the cause of action would not accrue until the plaintiff knows or reasonably should have known of the injury. Id. at 37. In determining whether the discovery rule might apply, however, courts utilize a categorical approach. See Apex Towing Co. v. Tolin, 41 S.W.3d 118, 122 (Tex. 2001).

Using this approach, a court does not determine when a particular injury was actually discovered in a particular case, but rather whether the case is the type to which the discovery rule applies.

If you have a question about whether an injury you’ve suffered might be subject to the discovery rule, you should contact one of the experienced personal injury attorneys at Bailey & Galyen.