You Could Have a Statute of Limitations Problem Even If You’ve Already Filed a Lawsuit

The statute of limitations is the time limit when a lawsuit must be filed. After that time expires, a lawsuit cannot be filed, and a victim will be forever barred from recovery for injuries.

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In many injury cases, the statute of limitations (SOL) won’t be an issue—hopefully, a victim will find an attorney relatively quickly, and that attorney will file suit well within the time frame allowed. But there is a hidden SOL problem that many attorneys may not be aware of, that could forever bar a party’s right to recover, even when a lawsuit has already been filed.

Naming the Proper Party

We tend to believe that if the lawsuit is filed in the correct time period, that the SOL requirement has been met, and there’s nothing more to worry about. But that assumes that the correct defendant has been named in the lawsuit.

Certainly, with lawsuit involving, for example, a car accident, it’s relatively easy to property name the driver of the other vehicle. But in many cases, when suing a business or company, there may be multiple corporate names, corporate partners, subsidiaries, fictitious names, etc. The correct name of a defendant may not be readily apparent.

Let’s assume a four-year SOL. You sue three years after the accident. Two years after the lawsuit is filed, you realize that you named “Bob’s Drugstore,” as a defendant, but that in fact, it’s the “ABC Global Drugs Company” that owns, operates and manages Bob’s. Now, you want to add ABC to the lawsuit…except it’s now been more than four years since the accident. Can you add ABC? You may have a problem.

Recent Case Discussed SOL Naming Problem

In a recent case, a woman was misdiagnosed after appearing at a hospital, and ultimately suffered a stroke. The victim’s attorney named the wrong defendant, and the correct one was substituted in the lawsuit, but only after the SOL regarding that defendant had expired.

The appellate court noted that the SOL problem doesn’t apply where there is just a misnomer—a simple misspelling or misnaming of an otherwise proper defendant.

The court noted that in this case, the improper defendant was represented by the same law firm as the proper, later substituted defendant, and that the proper defendant was in control of the improper defendant. Further, during the suit, the improper defendant had hid the fact that the proper defendant hadn’t been named.
Overall, the court felt the named defendant had purposely engaged in a pattern of deception, orchestrated behind the scenes by the proper defendant, to hide the truth until the SOL made it too late to substitute the proper defendant.

Because of this, the court determined that the problem was merely one of a misnomer. That is, the court allowed the victim to substitute in and sue the proper defendant, regardless of the fact the SOL had expired as to that defendant.

Although it’s a good result, the case is still a lesson in how important it is to make sure that you’re suing the correct party. That often takes intensive pre-suit research. But failure to do it could create SOL problems where there may not appear to be any.

An injury trial requires close attention to detail at every stage, including proper identification of who to sue. If you have been in an accident, talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your injury case.

Photo Credit: shawncalhoun via Compfight cc

 

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