SOL – Statutes of Limitations in Civil Cases in Oklahoma

Statutes of Limitations are deadlines for filing suit. If you don’t file your lawsuit within the Statute of Limitations for that particular kind of case in that particular venue, you are “S.O.L.” … You all know what that means, right? Isn’t it amazing that this concept, invented in Roman law, and codified in England’s Statutes of Limitations in 1623, has the same exact initials as our American slang: “sh*t out of luck.” History has its odd coincidences, right?

Or maybe it’s fate! Or proof of the power of Schumann Resonances! Or time travel – you know, a Member of the House of Commons in Merrye Old England gets swept up in the space-time continuum, visits Missouri in the early 20th Century, finds a way back home, and thinks to himself: “Hmmm, let’s have a little fun with history here – ah yes, we’ll call them Statutes of Limitations – S.O.L. – ha ha, ho ho, hee hee.”

But, it’s not so funny if you wait too long to go to a lawyer, your case doesn’t get filed on time, and your most excellent and wonderful lawsuit is, well, S.O.L.

The basic idea of Statutes of Limitations is that potential defendants should not have to have potential lawsuits hanging over their heads till death relieves them of their fear. There are some exceptions, in certain kinds of criminal cases. There is no Statute of Limitations for murder. That can hang over your head, and your conscience, forever. Most crimes have defined Statutes of Limitations, which I’m not going to discuss because I don’t do criminal law and don’t know what they are. However, Statutes of Limitations in civil cases are a bit more complex than most people realize, so here is a primer on Limitations in Oklahoma civil cases.

As a predicate, filing a case, and service of process, are two different things. Filing a case preserves the Statute of Limitations. Serving process by serving a Summons and a copy of the Petition (in federal court, the Complaint) give notice to the Defendant that they have been sued. You do NOT have to serve process before the date of the Statute of Limitations; you just have to file the case in court. You then have 180 days to obtain service, or the case will be deemed dismissed unless there is a valid reason you could not obtain service within that time. So, on to the mundane details we go.

Intentional Acts – One Year

In our state the Statute of Limitations for injury due to an intentional act is generally one year. Libel (written defamation) and slander (spoken defamation) must be filed in court on or before one year from the date of the wrongful lying hateful statement that caused you shame, humiliation, emotional injury, loss of reputation, and/or economic harm. Assault (putting a person in fear of an offensive touching) and battery (offensive touching) must be filed within a year of the injury. Actions for malicious prosecution and wrongful imprisonment must also be brought within a year.

Negligence, Wrongful Death, Medical Malpractice, and Product Liability – Two Years

Claims for personal injury must be brought within two years of the date of injury, or of discovery of the injury. A claim for wrongful death must be filed within two years of the date of the death, even if the injury that caused the death occurred more than two years earlier, because the pain, suffering, and medical bills of the deceased are “subsumed” within the wrongful death action. Claims for trespass to real property also have a two year SOL. Product liability (a claim of injury due to an unreasonably dangerous product) and medical malpractice (a claim that a person was injured due to substandard medical care) must be filed within two years. I mention Product liability separately because it is not based on negligence, but rather is “strict liability”. You don’t have to prove that the manufacturer failed to use ordinary care, only that the product was unreasonably dangerous.

Oral or Implied Contract – Three Years

Although many people think a contract must be written to be enforceable, that’s not necessarily true. A written contract in general is merely the evidence to prove a contract. If you and I agree on a buy-sell arrangement, and one of us verbally makes the offer and the other verbally accepts it, a contract is formed (unless it’s a real estate sale, which requires much more than that). An action for damages to enforce that contract must be brought within three years of the time we sat down and made an agreement for you to buy my horse, as long as we were sufficiently specific about the terms such as price, tack, saddle, and lineage papers. There are also contracts that are “implied by law”. For instance, every sale of goods carries with it an implied “warranty of merchantability” – that the product sold is of reasonable quality and fitness for the purpose for which it was intended. Although product liability claims in general must be brought in two years, a claim for injury caused by a defective (non-merchantable) product may be brought within three years if the injured person was the original purchaser of the product.

Written Contract – Five Years

An action for damages due to failure to honor a written contract must be filed five years or less after breach of the agreement. The area of my practice to which this applies is written insurance contracts. If my client is injured and the person who caused it has insufficient liability insurance, there may be a claim against my client’s own insurance policy for additional coverage called “uninsured/underinsured motorist – (UM) coverage. In general, that claim can still be brought up to three years AFTER the personal injury statute of limitations ran. If the insurer fails to honor its obligation of good faith and fair dealing, the “insurance bad faith” claim for damages caused by the insurance company can be brought within five years of the time the insurer failed to honor the written insurance contract.

Homeowners’ Insurance and Fire Loss Claims

Although homeowners’ policies are written contracts, they often limit the time for making and proving up a claim for storm damage, vandalism, theft, or fire loss to one or two years from the date of loss. Despite the state statutes stating that claims on written contracts carry a five-year limitations period, policy time limitations for those types of claims have been upheld by the Oklahoma Supreme Court. On the other hand, if the insurer breaches its duty of good faith in paying the claim, there is still a five-year Statute of Limitations from the date of the company’s wrong-doing, to bring the bad-faith claim against them.

“Tolling” of Statutes of Limitations

A Statute of Limitations is “tolled” during a period of disability which makes it impossible for the injured person to realize they have a claim, or to file a claim. If, for instance, a person is in a coma for six months, their SOL is extended by six months because it begins to run again after they regain consciousness. A case that disturbed me when it came out, 20 years ago, was a claim against a minister alleged to have molested a minor in his congregation many years previously. The young lady, by this time an adult, had a repressed memory, as molestation and rape victims often do. Her lawyer argued that her Statute of Limitations started to run when the memory surfaced during adult counseling. Unfortunately, the Court ruled otherwise. Her repressed memory did not constitute a “period of disability” to toll her Statute of Limitations.

Statutes of Limitations for Children

An injured minor’s Statute of Limitations is one year after the age of majority, so they must file their claim by the time they are nineteen. If a child is almost 18 when injured, they can still take advantage of the 2-year Statute of limitations for negligent injury, since Courts will enforce the longer, rather than the shorter, period of Limitations prescribed by the Statutes.

Discovery Statute of Limitations

Here’s one that can get pretty tricky. Sometimes a person does not know they had something wrong done to them until long after it occurs. For instance, if a physician fails to diagnose cancer, or leaves a sponge in an abdomen, it may not be discovered until months or years later. Another example is toxic injuries, which have latency periods. You may be exposed to a chemical and not realize the chemical injured you until years later when a disease, such as mesothelioma caused by asbestos, is diagnosed. In those cases, the Statute begins to run from the time the person learns they have an injury, and that it was caused by the Defendant.

Limitations for Tort Claims Against Governmental Agencies

Most claims for injury against a state, local, or county government or agency fall within the Governmental Tort Claims Act. These have their own special rules. It works like this. You must give notice of the claim, in writing, to the correct agency within one year of the injury. They then have 90 days to pay, deny, or ignore the claim. If they ignore it, it is “deemed denied”. After a claim is denied or “deemed denied”, you have 180 days to file suit. Calculating the notice dates and filing dates for tort claims is a challenge, but is part of a lawyer’s job when representing a person injured by somebody employed by or acting on behalf of a government.

The Savings Statute

If a case is filed on time, and is dismissed “other than on the merits”, it may be re-filed for up to one year after the date it was dismissed either voluntarily or by the Court. We don’t like to let cases linger around, but there are times when it is in our client’s best interest to wait a while – for instance, to continue investigation, or to determine what the client’s permanent injuries may be. A way to extend the SOL under the “Savings Statute” is to file the case within the original Statute, say two years, and then dismiss it “without prejudice” up to 180 days after that. There is then an additional one year to file the case. In effect, your lawyer can extend the two-year Statute of Limitations to three and a half years, by following that procedure.

And, They Really Mean It!!

Most deadlines in cases can be extended by agreement or by application to the Court. Statutes of Limitations just aren’t that way. Missing a Statute of Limitations is generally considered to be legal malpractice, and can be cause for disciplining a lawyer for failing to provide ethical and competent representation. As you can probably see, not all Limitations periods are cut and dried/black and white. There are situations, particularly with respect to when the injured person learned about the wrong, that the question of when the Statute ran is a fact question for a jury, and can’t be determined as a matter of law by the judge.

Statutes of Limitations, and fear of being “S.O.L.”, are not the only reason to consult a lawyer earlier rather than later. If an injured person contacts me as soon after the injury as possible, I can usually do a much better job of investigating and proving their claim. As a matter of protecting ourselves and exercising good judgment, our firm (and most firms) are reluctant to take a case at the last minute before the Statute of Limitations because we don’t have time to evaluate the case, investigate it properly, and make sure we get it filed in the correct court on time. It’s also true that people trying to deal with an insurance company on their own, and trusting a defendant to “do the right thing”, usually make serious errors like talking too much and/or making offers that really don’t make sense in the context of our judicial system. So, if you have a legal problem, you’re usually far better off to call now, and not wait until the time machine of the legal system bars your claim forever.

As for me, I can be reached at gregh@fylaw.com.