Sunday, August 25, 2019

Statute of Limitations can be a Statute of Liberty for Defendant

LAW MATTERS

 

 

There is an old saying that “Time and tide wait for no man.” Although the phrase pre-dates political correctness and probably is meant to apply to women too, it means no one is so powerful they can stop the march of time. In a legal context, the march of time is also powerful as it can bar claims under what is known as a statute of limitations.

A statute of limitations sets a time limit on a plaintiff’s right to sue. Even the ancient Greeks adopted a five year statute of limitation for most cases. Demosthenes, a leading Greek statesman of ancient Athens, wrote that the statute of limitations was adopted to control “sycophants,” defined as professional accusers.

Modern statutes of limitations are not as simple as the ancient Greeks. They are not only the product of an effort to avoid unnecessary lawsuits, but are also result of pressure brought through the political process. The entire process is colored by our elected officials’ view of what is best for society, and in many cases, the promotion of commerce and goodwill. That means different claims have different limitations.

Most of Florida’s limitations periods are codified at Florida Statutes, Section 95.11. In adopting limitations periods, the legislature balances the right of an injured person to pursue relief, desire of a potential defendant to be free from liability and the interest of society promoting commerce and avoiding problematic lawsuits.

In Florida, a five-year statute of limitations is actually one of the longest periods allowed to file suit. Five years is the limit for filing suit on a written contract or to foreclose a mortgage. There are some relatively unique real property actions for which the total time limit is longer, but most lawsuits must be filed in even less time.

Suit must be filed within four years from the date the cause accrues for all oral contracts, actions to rescind a contract, breach of implied warranty or products liability claims. The general statute of limitation for torts (wrongful acts) not including breach of contract is generally four years. But, the period is shortened to two years for professional malpractice, libel, slander, wrongful death or actions to recover wages or overtime. There is a one-year statute applicable to actions for specific performance of a contract, to enforce an equitable lien for improving real property, and for suit to pursue a deficiency judgment against a debtor after foreclosure of a mortgage. And, perhaps the granddaddy of all limitations is that an action to collect a judgment can be pursued for up to 20 years for a Florida court judgment. If the judgment is from a court outside of Florida or a federal court, collection must be pursued within five years.

There are many other statutes that address specific claims. In some cases, there is even a delay allowed before the statute begins to run. Example of an allowed delay is an action on a latent defect in design, planning or construction of an improvement to real property, which does not start until the date the defect is discovered or should have been discovered. In other cases, the statute makes it clear that there is no extension, as with libel or slander for which the period runs from date of publication, not discovery, without regard to whether the defamation was public or private.

Finding the limitations period applicable to a particular claim can be difficult, since there is not only the general statute of limitations but also various statutes that address specific claims. Even the general statutes can be difficult to apply. In one case, the Florida Supreme Court held the two-year professional malpractice statute applied to a claim by a person contracting with the engineer, but the four-year negligence statute would apply to the same claims against the engineer if there was no contract between the parties. The court ruled in another case that the fouryear general negligence limitations period applied to a claim for damages against a blood bank alleged to have sold HIV-tainted blood, rather than the two-year medical malpractice statute.

Section 95.031 Fla. Stat. tells us when the limitations period starts. Under that statute, the limitations period starts from the time “the cause of action accrues.” The statute goes on to explain that a cause of action accrues when the last element constituting the cause of action occurs.

No one at the courthouse stops someone from filing a lawsuit that is barred by a statute of limitations. The statute of limitations must be raised as a defense by the defendant or it is waived. The statute of limitations will not generally bar a claim made by a defendant against the person suing the defendant in the same action (known as a counterclaim) as long as the defendant is required by Florida law to file the claim as a counterclaim or use it all together. Such counterclaims are known as mandatory counterclaims. A mandatory counterclaim is related to the subject matter of the original lawsuit. A permissive counterclaim, which is a claim the defendant could make against the other party and which is generally unrelated to the suit against the defendant, will be subject to the applicable statute of limitations. As with most rules of law, there are even exceptions to that rule.

A party to a contract may be tempted to provide an even shorter period of time for filing suit related to the contract. Insurance companies frequently put a one year limitation for suit against the insurance company by the homeowner in insurance policies. The United States Supreme Court has held such contractual limitations provisions binding, as long as they are not unreasonably short or otherwise violate a statutory prohibition. Florida’s legislature does not agree.

Section 95.03 Florida Statutes provides that no contract may shorten the time for filing suit to a period less than that provided by the statute of limitations for any matter arising out of the provisions of the contract and makes any such effort illegal and void. That means insurance contract clauses claiming to bar any suit against the insurer if not filed within one year of the date a claim accrues are not enforceable. That may be of particular interest to those pursuing claims for damages from Hurricane Irma.

Statutes of limitations do not help a plaintiff and are designed to promote other goals. A statute of limitations can end a plaintiff’s claim. For a defendant or potential defendant, a statute of limitations can be a statute of liberty as the defendant is free from suit.

William G. Morris is the principal of William G. Morris, P.A. William G. Morris and his firm have represented clients in Collier County for over 30 years. His practice includes litigation and divorce, business law, estate planning, associations and real estate. The information in this column is general in nature and not intended as legal advice.

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