Georgia's two-year limit for truck accident injury claims

Limitation periods for personal injury, consortium and property damage

O.C.G.A. 9-3-33 sits in Article 2, Specific Periods of Limitation, of Chapter 3, Limitations of Actions, in Title 9 of the Official Code of Georgia Annotated. Its main rule, introduced by the words "Except as otherwise provided in this article", sets two years after the right of action accrues for actions for injuries to the person. For a person hurt in a truck accident, the period for an action for injuries to the person is that two-year period, subject to the same opening words.^[1]

Under the same opening qualifier, Section 9-3-33 provides that actions for injuries to the reputation "shall be brought within one year after the right of action accrues", while actions "for injuries to the person involving loss of consortium" run four years after the right of action accrues. O.C.G.A. 9-3-31 sets a four-year period, running from accrual, for actions for injuries to personalty, including injuries to personalty in truck accidents. Where a truck crash gives rise both to an action for injuries to personalty and to an action for injuries to the person, Section 9-3-31 and Section 9-3-33 set a separate period for each, and the period in the latter remains subject to its opening qualifier.^[1][5]

O.C.G.A. 9-3-98, part of Article 5, Tolling of Limitations, provides: "This article shall apply to tort actions as well as actions on contracts." Section 9-3-33 and Section 9-3-31 measure each period, for a truck crash claim or another claim, from the time the right of action accrues, but provisions of Article 5, which Section 9-3-98 applies to tort actions, change that starting point in stated circumstances. Under O.C.G.A. 9-3-96 the period runs only from the plaintiff's discovery of a fraud by the defendant that debarred or deterred the plaintiff from bringing an action. Under O.C.G.A. 9-3-90(a) and (b), the time runs after the disability is removed for an individual who is legally incompetent because of intellectual disability or mental illness when the cause of action accrues, and, subject to Code Section 9-3-33.1, after an individual under 18 when the cause of action accrued reaches the age of 18 years. Court decisions decide when a right of action accrues in a truck accident case or in any other case, and this entry does not cover those decisions.^[12][1][5]

Where a truck accident claim is a tort claim against the state under Article 2, State Tort Claims, of Chapter 21 of Title 50, O.C.G.A. 50-21-26(a)(1) requires written notice of the claim within 12 months of the date the loss was discovered or ought to have been discovered, and it set a different deadline, 12 months after July 1, 1992, for claims that accrued from January 1, 1991, to July 1, 1992. Under subsection (a)(3), no action against the state under that article shall be commenced, and the courts have no jurisdiction of it, "unless and until a written notice of claim has been timely presented to the state as provided in this subsection." Subsection (a)(2) requires the written notice to be mailed by certified mail or statutory overnight delivery, return receipt requested, or delivered personally, with a receipt obtained, to the Risk Management Division of the Department of Administrative Services, plus a copy delivered personally or mailed by first-class mail to the state government entity whose acts or omissions are asserted as the basis of the claim. Subsection (a)(4) requires a complaint to attach the notice of claim and the delivery receipt as exhibits, and a complaint is dismissed without prejudice if that failure is not cured within 30 days after the state raises it by motion. Under subsection (b), no action may be commenced after notice until the Department of Administrative Services has denied the claim or more than 90 days have elapsed without action by the department, whichever occurs first. Under subsection (a)(5), a notice for a truck accident claim against the state states, to the extent of the claimant's knowledge and belief and as may be practicable, the name of the state government entity, the time and place of the transaction or occurrence, the nature and amount of the loss, and the acts or omissions which caused the loss.^[4]

O.C.G.A. 36-11-1 provides that claims against counties, including truck accident claims against a county, are barred unless presented within 12 months after they accrue or become payable, provided that "minors or other persons laboring under disabilities shall be allowed 12 months after the removal of the disability to present their claims." Under O.C.G.A. 36-33-5(a) and (b), a claimant with a claim for money damages against a municipal corporation on account of injuries to person or property, including a truck crash claim that meets those terms, presents the claim in writing to the governing authority within "six months of the happening of the event upon which a claim against a municipal corporation is predicated". The claim states the time, place and extent of the injury, as nearly as practicable, and the negligence which caused the injury, and no action is entertained by the courts against the municipal corporation until the claim has first been presented. Subsection (e) requires the description of the extent of the injury to include the specific amount of monetary damages sought, and subsection (f) requires service of the claim on the mayor or the chairperson of the city council or city commission, personally or by certified mail or statutory overnight delivery. The governing authority considers and acts on the claim within 30 days, and under subsection (d) the running of the statute of limitations is suspended while the demand for payment is pending before the authorities without action on their part.^[2][3]

Minors, legally incompetent individuals and later disability

Under O.C.G.A. 9-3-90(a), individuals who are legally incompetent because of intellectual disability or mental illness when the cause of action accrues "shall be entitled to the same time after their disability is removed to bring an action as is prescribed for other persons." Subsection (b) provides: "Except as otherwise provided in Code Section 9-3-33.1, individuals who are less than 18 years of age when a cause of action accrues" receive the same time after reaching the age of 18 years to bring an action as is prescribed for other persons. That rule reaches a truck accident claim only where the claimant was less than 18 years of age when the cause of action accrued, and only subject to Code Section 9-3-33.1. Subsection (c) addresses an action accruing to an individual imprisoned at the time of its accrual: if the action was barred by the chapter before July 1, 1984, it is not revived by the chapter as amended, and if it would be barred before July 1, 1984, under the chapter as amended but not under the chapter in force immediately before that date, it is not barred until July 1, 1985.^[6]

Under O.C.G.A. 9-3-91, if a person suffers a disability specified in Code Section 9-3-90 after the right of action has accrued, and the disability is not voluntarily caused or undertaken by the person claiming the benefit, the limitation on that cause of action "shall cease to operate during the continuance of the disability." For a truck crash claim, the stop under Section 9-3-91 depends on those same conditions: the disability arises after accrual, and it is not voluntarily caused or undertaken by the person claiming the benefit.^[7][6]

O.C.G.A. 9-3-95 concerns a joint right of action, including one arising from a truck crash, where one or more of the persons having the right is under a disability specified in Code Section 9-3-90. In that case, "the terms of limitation shall not be computed against the joint action until all the disabilities are removed." However, if the action is severable so that each person may bring an action for his own share, those free from disability are barred after the running of the applicable statute of limitations, and "only the rights of those under disability shall be protected." When a truck accident leaves several persons holding a joint right of action, those under disability are protected whether or not the action is severable, and severability decides whether those free from disability lose the benefit and are barred once the applicable period has run.^[9][6]

Defendant's absence from the state and fraud

Under O.C.G.A. 9-3-94, "Unless otherwise provided by law, if a defendant removes from this state", the time of the defendant's absence from the state until the defendant returns to reside "shall not be counted or estimated in his favor." In a truck accident action, unless otherwise provided by law, that rule reaches a defendant who removes from this state, and the uncounted time ends when that defendant returns to reside. Section 9-3-94 appears in Article 5, Tolling of Limitations, of Chapter 3. Court decisions decide when Section 9-3-94 applies to a particular defendant, including a truck driver, and this entry does not cover those decisions.^[8]

Under O.C.G.A. 9-3-96, if the defendant or those under whom he claims "are guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action", the period of limitation "shall run only from the time of the plaintiff's discovery of the fraud." Section 9-3-96 appears in the same Article 5, and under Section 9-3-98 that article applies to tort actions, including tort actions over truck crashes. In a truck crash case, that later starting point is available only where the fraud of the defendant, or of those under whom the defendant claims, debarred or deterred the plaintiff from bringing the action.^[10][12]

Tolling while a criminal prosecution is pending

Under O.C.G.A. 9-3-99, the running of the period of limitations for "any cause of action in tort that may be brought by the victim of an alleged crime" is tolled when the claim arises out of the facts and circumstances relating to the commission of that alleged crime committed in this state, subject to the six-year cap and the Code Section 9-3-33.1 exception in the same section. The tolling runs from the date of the commission of the alleged crime or the act giving rise to the action in tort "until the prosecution of such crime or act has become final or otherwise terminated", provided that the tolled time does not exceed six years. That six-year limit holds in truck accident cases and others alike, except as otherwise provided in Code Section 9-3-33.1.^[13]

Section 9-3-99 appears in Article 5, Tolling of Limitations, of Chapter 3. When a truck crash is the subject of a prosecution for an alleged crime committed in this state, the tolling reaches a tort claim by the victim only if the claim arises out of the facts and circumstances relating to the commission of that alleged crime. The tolled time counts from the date of the alleged crime or the act giving rise to the tort action, not only while the prosecution is pending, and may not exceed six years, except as otherwise provided in Code Section 9-3-33.1. A prosecution of a truck driver ends the tolled time when it has become final or otherwise terminated, within that same six-year limit.^[13]

Counterclaims and cross-claims

O.C.G.A. 9-3-97 extends the limitations of time within which actions may be commenced in this state "only insofar as the enforcement of rights which may be instituted by way of counterclaim and cross-claim." Under the extension, parties, including parties to truck crash litigation, may commence the prosecution and enforcement of rights by way of counterclaim and cross-claim up to and including the last day on which the answer or other defensive pleadings were due to be filed, "provided that the final date allowed by such limitations for the commencement of such actions shall not have expired prior to filing of the main action." In a truck accident suit, a counterclaim or cross-claim by a party, such as a trucking company sued as a defendant, receives this extension only if the limitation for that claim had not expired before the main action was filed. The same condition holds when a truck driver asserts a counterclaim, and the extension reaches only rights enforced by counterclaim and cross-claim.^[11]

Related provisions outside this entry

O.C.G.A. 9-3-92, which excludes from limitation periods, in favor of a person's estate, the time between the person's death and the commencement of representation upon the estate, up to five years, lies outside this entry and is covered in the entry on survival and estate actions. O.C.G.A. 9-3-93, which excludes the same unrepresented-estate time, up to five years, in favor of creditors of the estate, also lies outside this entry. O.C.G.A. 9-3-97.1, which tolls the periods for medical malpractice actions in Code Sections 9-3-71 and 9-3-72 in stated circumstances involving requests for medical records, lies outside this entry as well.^[14][15][16]

See also: Flanagan Law truck accident practice

See also

On related publications

• Georgia truck-crash law notes (truckaccidentlawyer.wiki)
• Liability and comparative fault in Georgia (caraccidentlawyers.wiki)