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Can You Avoid Liability by Tolling a Statute of Limitation?

By George Khoury, Esq. | Last updated on

One of the simplest causes of malpractice involves missing deadlines, and no deadline is more critical than a statute of limitations. If you miss one, then you can almost rest assured that (or, more likely, not sleep because) you'll be hearing from your state bar, and/or reporting to your malpractice insurance carrier.

However, before breaking the news to your client that you missed the statute of limitations, you should probably do a bit of last minute research to make sure you can't magically save yourself from some serious potential malpractice liability.

Tolling to the Rescue

While an attorney can sometimes get away with falling on their sword and begging forgiveness from a judge for missing a judicially imposed deadline, that won't work after blowing a statute. Instead, using every single plausible tolling argument might be your only way out.

Statutory Tolling

If you're in a state like California, there may be a statute that can save your case. Pursuant to California Code of Civil Procedure section 351, the statute of limitations is tolled while a defendant is out of state. While this doesn't apply to all types of cases and defendants, if it applies to your case, you might have an extra day or two (or maybe a week) to get your complaint on file and avoid committing malpractice. Unfortunately, it may be rather difficult to actually find out whether the defendant was out of the state without doing some discovery, which might be unobtainable at the initial pleading stages of a case.

Depending on your state's law, there may be other statutory exceptions, including your client or adverse party's infirmity, incarceration, incapacity, minority, or malfeasance.

Equitable Tolling/Equitable Estoppel

If you missed the statute due to extraordinary circumstances beyond your or your client's control, and you've pursued the claim diligently, then you may be able to successfully plead equitable tolling. Unfortunately though, courts are known to heavily scrutinize claims of equitable tolling.

However, if those extraordinary circumstances are the result of an adverse party's deliberate actions, an equitable estoppel argument can also be made.

The Discovery Rule (a.k.a. The Delayed Discovery Rule)

In some situations, even though the statute of limitations may have lapsed from the date of injury, or date of loss, if the cause was not discovered until after the injury, then the discovery rule could apply to extend the statute of limitations. In short, the discovery rule, a.k.a. the delayed discovery rule, provides that a statute of limitations does not begin to run until the cause of action is discovered, or should have been discovered.

Other Claims With Longer Statutes

Lastly, if there is no chance at reviving a lapsed cause of action, exploring alternative theories that potentially have longer statutes of limitation could truly save the day (or just you from increased malpractice insurance premiums). For instance, in employment cases, a wrongful termination claim may only have a two year statute of limitations, but a contract claim may have up to four years from the date of breach.

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