Class: INSURANCE LAW
Semester: SPRING 2015
Professor: HAZEL BEH
Statutes of Limitation
What is a statute of limitations? A legislatively enacted statute that fixes the outer date for filing a claim. A statute of repose fixes the outer date for filing a claim by cutting of any exceptions or extensions allowed by the statue of limitations.
Purpose: Quality of evidence, peace of mind, insurance premiums (financial planning/risk management)
Accrual
HRS § 657-7 Damage to persons or property
Two years after cause of action accrued
Actions for the recovery of compensation for damage or injury to persons or property shall be instituted within two years after the cause of action accrued, and not after, except as provided in section 657-13.
HRS § 657-7.3 Medical torts; limitation of actions; time
Two years after plaintiff knows or through reasonable diligence should have discovered the injury but no more than six years after date of alleged act or omission causing the injury or death (statute of repose).
· Minors get six years from date of alleged wrongful act except those actions occurring before minor’s 10th birthday (must be commenced within six years or by tenth birthday – whichever is longer)
No action for injury or death against a . . . physician or surgeon . . . based upon such person’s alleged professional negligence, or for rendering professional services without consent, or for error or omission in such person’s practice, shall be brought more than two years after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, but in any event not more than six years after the date of the alleged act or omission causing the injury or death. This six-year time limitation shall be tolled for any period during which the person has failed to disclose any act, error, or omission upon which the action is based and which is known to the person.
Actions by a minor shall be commenced with six years from the date of the alleged wrongful act except the actions by a minor under the age of ten years shall be commenced within six years or by the minor’s tenth birthday, whichever provides a longer period. Such time limitations shall be tolled by any minor for the period during which the parent, guardian, insurer, or health care provider has committed fraud or gross negligence, or has been a party to a collusion in the failure to bring action on behalf of the injured minor for a medical tort. The time limitation shall also be tolled for any period during which the minor ‘s injury or illness alleged to have arisen, in whole or in part, from the alleged wrongful act or omission could not have been discovered through the use of reasonable diligence.
HRS § 662-4 Statute of limitation
Claims barred two years after the claim accrues
A tort claim against the State shall be forever barred unless action is begun within two years after the claim accrues, except in the case of a medical tort claim when the limitation of action provisions set forth in section 657-7.3 shall apply.
HRS § 663-3 Death by wrongful act
Two years (equitable tolling does NOT apply)
(a) When the death of a person is caused by the wrongful act, neglect, or default of any person, the deceased’s legal representative, or any of the persons enumerated in subsection (b), may maintain an action against the person causing the death or against the person responsible for the death. The action shall be maintained on behalf of the persons enumerated in subsection (b), except that the legal representative may recover on behalf of the estate the reasonable expenses of the deceased’s last illness and burial.
(b) In any action under this section, such damages may be given as under the circumstances shall be deemed fair and just compensation, with reference to the pecuniary injury and loss of love and affection, including:
(1) Loss of society, companionship, consortium, or protection;
(2) Loss of marital care, attention, advice, or counsel;
(3) Loss of care, attention, advice, or counsel of a reciprocal beneficiary as defined in chapter 572C;
(4) Loss of filial care or attention; or
(5) Loss of parental care, training, guidance, or education, suffered as a result of the death of the person; by the surviving spouse, reciprocal beneficiary, children, father, mother, and by any person wholly or partly dependent upon the deceased person. The jury or court sitting without jury shall allocate the damages to the persons entitled thereto in its verdict or judgment, and any damages recovered under this section, except for the reasonable expenses of last illness and burial, shall not constitute a part of the estate of the deceased. Any action brought under this section shall be commenced within two years from the date of death of the injured person, except as otherwise provided.
HRS § 657-13 Infancy, insanity, imprisonment.
If any person entitled to bring any action specified in this part (excepting actions against the sheriff, chief of police, or other officers) is, at the time the cause of action accrued, either:
(1) Within the age of eighteen years; or,
(2) Insane; or
(3) Imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term less than the person’s natural life; such person shall be at liberty to bring such actions within the respective times limited in this part, after the disability is removed or at any time while the disability exists.
HRS § 657-1 Six Years
Contracts & Legal Malpractice
The following actions shall be commenced within six years next after the cause of action accrued, and not after:
(1) Actions for the recovery of any debt founded upon any contract, obligation, or liability, excepting such as are brought upon the judgment or decree of a court. . .
(2) Actions upon judgments or decrees rendered in any court not of record in the State. . .
(3) Actions for taking or detaining any goods or chattels, including actions in the nature of replevin;
Fraudulent Misrepresentation
(4) Personal actions of any nature whatsoever not specifically covered by the laws of the State
Tolling
Tolling Generally:
· By statute: minority, incapacity, prisoners
· By case law: continuing tort (Anderson)
Equitable Tolling Principle: Cause of action doesn’t accrue until you have these pieces of knowledge. In Hawaii:
(1) Injury/damage
(2) Violation of legal duty (facts related to that – not about law – Hays)
(3) Causal connection (b/w breach and damage)
DISCOVERY RULE
What is a tolling provision? A statute that “tolls” or suspends the statute of limitations for a specified period of time for a certain class of persons or types of claims. The statute begins to run upon a specified event, such as the attainment of a certain age or the removal of a disability. The legislature has chosen to protect these persons. Hun v. Center Properties.
Where is the general tolling provision and to whom does it appl
about a comatose victim? When you can find out what happened.
Whittington v. State
· HRS § 662-4: How someone can sue the state for negligence
o Sovereign immunity – “The King can do no wrong”
· Discovery rule applies to the State
· Actions brought by children against the state are not tolled (HRS § 657-13)
o TWO YEARS
Discovery Doctrine
What is the discovery rule? The doctrine is a judicial creation of equitable relief from the statute of limitations for plaintiffs who lack certain information concerning their claim. Hays v. City & Cnty of Honolulu.
When does it apply? When plaintiff lacks the factual foundation (knew or should have known) to assert a claim for negligence, there is concealment of the facts, or inherent difficulties in the nature of the injury or the casual relationship between the negligent act and the injury such as technological, scientific, or medical limitations. Hays, 81 Haw. at 398.
Discovery Rule for Products Liability: You have to discover that the defendant engaged in the manufacture/distribution of the product, that product contains a defect, and that the defect caused the injury.
HRS § 657-7.3
Two year SOL commences when plaintiff discovers, or through the use of reasonable diligence should have discovered:
(1) The damage;
(2) The violation of the duty (negligent or intentional act); and
(3) The causal connection between the violation of the duty and the damage.
Plaintiffs Are Cut Slack When…
(1) Plaintiffs have an inability to ascertain the necessary factual foundation on which to base the elements of their claim, such as lacking specialized medical knowledge
(2) There’s an alleged concealment of facts regarding cause of injury (i.e., fraud)
(3) Inherent difficulties in the nature of the injury or the causal relationship between the negligent act and injury, such as technological, scientific, or medical limitations.
Dunlea v. Dappen: Childhood rape by natural father
· Discovery Rule:
(1) Damage
(2) Duty
(3) Causal Connection
· Here causal connection was missing (she needed therapy in order to put it together)
o Federal tort claims act à She needs to know the cause and that the cause is negligent
Hays v. City & Cnty. Of Honolulu
· Plaintiff’s Argument: Lacked a legal theory
o The fact that you didn’t know that there was a legal duty for the state to warn you is not a reason to stop the claim from accruing.
· Federal Tort Claim Act Elements
(1) Cause
(2) Damage
· Principle: Had you been more diligent and gone to a good attorney, maybe you could have gotten the attorney to raise it and reverse 10 years earlier.
· Rule: If you have the facts, injury, and the connection between the two, that’s enough.
