What is “tolling” and how does it affect my right to bring a personal injury claim?

From car accident cases to negligent security cases to everything in between, all personal injury actions in Georgia fall under what’s called a “statute of limitations.” The statute of limitations stops potential plaintiffs from filing lawsuits once a certain amount of time has passed after they’ve been injured. In most cases, plaintiffs get two years after the date of their injury to file a lawsuit. However, Georgia law allows that two-year period to “freeze” so that plaintiffs get more time in certain situations. In other words, the two-year period stops running temporarily. This is called “tolling” the statute of limitations. There are quite a few things that can toll a statute of limitations, and we discuss some of the most common ones in this article.

Claims by Minors or Legally Incompetent Persons

When a person is a minor at the time they’re injured, the statute of limitations does not start running until he or she becomes an adult. Similarly, the statute of limitations will not run against someone who is “legally incompetent” when they’re injured, and it will not start running until they become legally competent.  A person is “legally incompetent” when their mind functions at a level so low they can’t manage their ordinary affairs of life. If a person is legally competent when they get injured, but become legally incompetent while the statute of limitations is running, the statute will toll from the time they become legally incompetent until they become legally competent again.

Criminal Investigations

The statute of limitations is tolled when the plaintiff is injured when he or she is the victim of a crime. In those cases, the statute is tolled from the date the crime was committed until prosecution or investigation of the crime has concluded. It does not matter whether the defendant to the lawsuit is actually the person who is being prosecuted or investigated for the crime. This type of tolling applies to crimes as minor as traffic offenses. For traffic offenses, tolling can stop (and the statute of limitations will start running again) when: (1) a driver who received a citation pays the fine; (2) the driver wins or loses a trial on their citation; or (3) the prosecution dismisses the charge against the driver. Importantly, in most situations, the statute of limitations will expire six years after the alleged crime was committed regardless of what has happened with the criminal prosecution and investigation. If you are injured by a driver who receives a citation or by a person who committed a criminal act on someone else’s property, you will almost certainly have more than two years to file a lawsuit thanks to this type of tolling.

Fraud

When a plaintiff is prevented from filing a lawsuit because the defendant has committed some type of fraud, the statute of limitations is tolled until the plaintiff discovers the fraud. The statute will not toll when the plaintiff fails to use ordinary diligence to discover the fraud, or when the plaintiff was aware of the facts needed to support their case even though the defendant committed fraud.

Unrepresented Estates of Deceased People

When a defendant does something to harm someone, and the person harmed dies before filing a lawsuit and before the statute of limitations expires, the deceased person’s estate can file the lawsuit on their behalf. All estates need an administrator who will take care of the deceased’s affairs after they’ve died. Some estates get administrators quickly, while others take years to get one. The statute of limitations will toll from the time of the person’s death until six months after the time an administrator starts representing the estate. However, the statute will only toll for a maximum of five years before it starts running again. Temporary administrators do not toll the statute, only the appointment of a permanent administrator can. If there are gaps in time between permanent administrators, the statute will toll between those gaps.

Defendant Leaves the State

With few exceptions, in order to get a lawsuit started, the plaintiff must “serve” certain documents on the defendant. Serving someone can be as simple as handing them the documents. But when the defendant leaves the state, the statute of limitations tolls until they return. However, it only tolls when serving the defendant is impossible. Plaintiffs have ways to serve people outside of Georgia through what’s known as the “long-arm statute.” If a plaintiff could still serve the defendant using methods allowed by the long-arm statute, tolling will not apply.

Statutes of Repose

There is one more important wrinkle to tolling. Most claims are subject to “statutes of repose.” Statutes of repose cut off the right to file a lawsuit after a certain amount of time has passed regardless of tolling.

Calculating statutes of limitations can be confusing and technical. If more than two years have passed since you or a loved one were injured due to someone else’s carelessness, you should still call the Rafi Law Firm to see if some type of tolling applies to your case. One of our skilled lawyers may find a way to show you still have time to file a lawsuit. Contact us at 404-800-9933 or click here.

2019-07-11T12:57:25-04:00