Tolling the Statute of Limitations on Civil Cases| A Civil Lawyer | Attorney’s Perspective on Tolling the Statute of Limitations on Civil Cases
The concepts behind the legal term of Art called Tolling is that lawyers, judges and the legislature recognize that there are reasons why the time to sue within the Statute of Limitations should be paused or in legal speak, tolled. So, though you cannot wait an unreasonable period of time to get around to suing someone, if certain events happen, the law will functionally hit “pause” on clock. It is worth noting that the law generally makes it the burden of the party “claiming” Tolling to affirmatively prove in order to get it. The concept of Tolling is different from Fraud and when it is “discovered” that we cover in another section.
In Washington, some general tolling conditions or situations according to Washington law include:
Fraud in Concealment. If a person harms someone else or does some conduct that is a basis for a law-suit, the law does not want them to be able to “hide” from service of the suit and get off the hook. The kind of concealment Washington law protect against is willful evasion of process or secret removal from a known address really requires active avoidance of being served with the papers of a suit, not just difficulty finding someone or leaving an address. Again, it is the person claiming this tolling provision is responsible for proving the active nature of concealment.
Equitable Reason based on Personal Disabilities, i.e. imprisonment, incompetency and minority. In general, if someone is mentally incompetent (can’t understand the nature of what is going on the proceedings of the case), under the age of 18, or imprisoned on a criminal charge when a cause of action accrues, the law reflects the common sense idea that the “clock” should not be ticking against him or her until such disability is lifted. As with all laws, there are a lot of nuances to this concept that have been developed in the Washington State case law (https://www.courts.wa.gov/opinions/) from specific situations so do not rely on this general advice. Set an appointment with us or a lawyer to get reliable up to date advice.
Fraud in Health Care Claims. In general, when a health care professional is negligent in treating someone, you have 3 years to file a claim, or one year form when you discover the cause of the injury, but no more than 8 years after the act or omission that cause it. That being said, if the act or omission is subject to, “fraud, intentional concealment, or the presence of a foreign body not intended to have a therapeutic or diagnostic purpose or effect, until the date the patient or the patient’s representative has actual knowledge of the act of fraud or concealment, or of the presence of the foreign body; the patient or the patient’s representative has one year from the date of the actual knowledge in which to commence a civil action for damages.” (http://apps.leg.wa.gov/rcw/default.aspx?cite=4.16.350). The idea is that if someone covers up what they did, they do not get the benefit of having the Statute of Limitations protect them if someone figures this out. Again, it is the person claiming this tolling provision, who is responsible for proving the active nature of concealment. There are nuances developed in case law, for example, in situations of multiple health care providers, knowledge of parents or guardian and other situations so set an appointment with a lawyer to discuss the details of you or your family’s situation.
Equitable tolling due to Military Service. In general, for the period that someone is in active member of the armed forces, until they are discharged from active service, Federal and Washington state law attempts to protect them. Federal law controls this issue and it is embodied in the Service Member Civil Relief Act. This Act is comprehensive but for purposes of this discussion, covers individual service members who are going to sue or are being sued. This comprehensive area of law is supplemented with a similar provision in Washington called the Washington Service Members’ Civil Relief Act that gives further protection to military personnel. If you are or were an active member of the military and are going to be sued or or your going to sue an active service member, this is an excellent resource to know about.
Tolling due to Death. In general, if a person has a cause of action for a claim against anther person but dies before they are able to file the claim, the dead person’s personal representative has an additional year to file the claim on behalf of the dead person’s estate. As civil lawyers | attorneys, we see the idea behind this law is that someone who something wrong and hurt another person should not benefit from the death of that person and escape liability. Note that various Washington State Probate code sections, can affect this situation and more importantly, must be consulted if you intend to sue a person who has died or sue on behalf a dead person’s estate.
Partial Payments or New Promises to Pay Debts. A person might make small payments on a debt hoping that the original Statute of Limitations for the debt will expire and they will get off having to pay the remaining balance. Civil lawyers and the legislature have anticipated this. Washington law prevents this from happening, in short by saying partial payments or new promises to pay re-ups the statute of limitations to the date of payment, so, if someone receives a partial payment on a contract, the Statute of Limitations to sue would start over again on payment, giving the party 3 years to sue on the debt.
Tolling Provisions Due to Law. In some cases, Washington law requires you to wait till you file a claim. Typical tolling provisions include if you are going to sue the State, construction defect claims or medical malpractice. This requires consultation with a lawyer.
Estoppel. Often called Equitable Tolling. When someone fraudulently, deceptively or in bad faith induces a person who has a potential suit to delay filing a suit until the applicable statute of limitations has expired, Washington law will prevent them from claiming they cannot be sued. Keep in mind that this is concept is applied sparingly and not applied to situations that could simply be called excusable neglect. Application of this concepts requires specific facts so calling and setting an appointment is necessary. In order for this to apply, a person being sued must actively conceal or misrepresent facts, or hinder or impede with the wronged persons discovering or suing on the claim. A simple example is if someone makes promises or representations to do something which lulls someone into not taking action within the proper time limits. Depending on the nature of the relationship between the parties and facts, courts might find it equitable to toll the statute of limitations.
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