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Scura, Wigfield, Heyer, Stevens & Cammarota Blog

CONTEMPLATING A LAWSUIT? MAKE SURE YOU ACT BEFORE THE EXPIRATION OF THE STATUTE OF LIMITATIONS

[fa icon="clock-o"] November 11, 2019 [fa icon="user"] David E. Sklar [fa icon="folder-open'] Litigation

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If you are contemplating a lawsuit against another individual or entity, you must make sure that you bring your lawsuit prior to the expiration of the applicable statute of limitations. This blog will explore what the statute of limitations is and the statute of limitations for some typical causes of action in the state of New Jersey.

WHAT IS THE STATUTE OF LIMITATIONS?

The statute of limitations is the time period after a cause of action accrues in which you can bring an action to seek a legal remedy. The accrual of a cause of action occurs when the act that provides the basis for the underlying legal action occurs. For example, if you are suing for an injury that you have incurred during a car accident, then the accrual of the action occurs when the car accident occurs. In a breach of contract action, the date that the contract is breached would be the date that the cause of action accrues. If you are contemplating a legal action it is important that you remember when your cause of action accrued. Furthermore, different states and jurisdictions have different statutes of limitations for specific actions. Therefore, it is important to familiarize yourself with the statute of limitations for your cause of action in the jurisdiction where it occurred.

STANDARD STATUTE OF LIMITATIONS PERIOD FOR COMMON CAUSES OF ACTION

N.J.S.A. 2A:14-1 provides that breach of contract actions has a six-year statute of limitations in New Jersey. This six-year statute of limitations period also includes quasi-contractual causes of action such as an action for unjust enrichment. In a personal injury action, the statute of limitations to file a lawsuit is two years from the date of the accident pursuant to N.J.S.A. 2A:14-2. Every cause of action has a different statute of limitations. It is important to consult with an attorney early before too much time has passed since the underlying incident, so your attorney can help guide you as to the applicable statute of limitations in your action. Failure to seek legal counsel early enough may cause you to run out of time to seek a legal remedy. 

FILING A COMPLAINT AFTER THE STATUTE OF LIMITATIONS

If someone files a complaint after the statute of limitations has expired, then the Defendant must claim the expiration of the statute of limitations as an affirmative defense. An affirmative defense is something that must be claimed by a Defendant in the answer to the complaint. Affirmative defenses provide an absolute defense to the underlying action. Examples of affirmative defenses other than the statute of limitations include intervening negligence of another party, unclean hands of the other party, and self-defense. An affirmative defense must be claimed by a party in a litigation or it is waived. Therefore, theoretically, a complaint brought outside the statute of limitations can result in a judgment if the expiration of the statute of limitations is not alleged by the opposing party. However, this is not something that should be relied upon, since it is one of the easiest ways out of a litigation for a party defending a claim.

From an attorney’s perspective, one of the first items an attorney generally inquires about is when the underlying incident occurred to prevent the expiration of the statute of limitations. If an attorney accepts a case from the client and allows the statute of limitations to expire, then that attorney will be facing a legal malpractice case.

If you are considering filing a lawsuit, it is important to contact an experienced litigation attorney to guide you through your options. It is also important to inform your counsel about every aspect of the potential litigation, so your attorney can guide you through the process as smoothly as possible. For questions regarding a potential litigation, call the law firm of Scura, Wigfield, Heyer, Stevens & Cammarota, LLP for a free consultation.

 

 

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