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A GUIDE TO STATUTES OF LIMITATIONS AND REPOSE IN NEVADA

 

What Is a “Statute of Limitations” and how does it differ from a “Statute of Repose”

A statute of limitations is a law, generally a state statute, which places a very specific time limit or deadline on your right to pursue a particular legal remedy regarding a specific wrongful act and injury. After the expiration of the statutory period or deadline, unless a legal exception applies as briefly described below, the injured person is barred and prevented from pursuing the right to file a lawsuit seeking money damages or other relief with a civil claim. 

Statutes of limitations usually begin to run on the date an injury occurs or a wrongful act is committed.  For example, if you have been injured in a car accident which took place on September 1, 2012, and if, in the State where the accident occurred, your claims against the negligent driver were subject to a two year statute of limitations, then the statute began to run on September 1, 2012, and your suit would need to be brought by no later than September 1, 2014. 

However, the time period from which a statute of limitations begins to run is often “tolled” until the injured party discovers, or through the exercise of reasonable diligence could or should have discovered, the wrongful act.  For example, if a party with whom you had entered into a written contract performed a wrongful act, in breach of the contract, on September 1, 2012, in a State with a six year statute of limitations for breach of contract claims, but you did not discover his wrongful act until December 1, 2012, then, arguably, the statute did not begin to run until December 1, 2012, and it may be possible that you have until December 1, 2018 to bring your claim. 

The rules for when a statute of limitations commences and whether it is tolled by discovery or some other fact (minority of the victim, etc.) are sometimes explicitly set forth in the statutes and are sometimes only known through a review of case law interpreting the statute, such that it is vitally important to contact an attorney as soon as possible if you think you may have a claim, and to obtain competent legal counsel before simply assuming that it is too late to file a claim.

Statutes of repose, by contrast, while similar to statutes of limitations, generally begin to expire on a specified date, and are not subject to being tolled by virtue of the fact that a claimant does not discover a claim until later.  This is the most important difference between a statute of limitations and a statute of repose.  For example, if you bought a newly built home which was completed on September 1, 2012, in a State which had a six year statute of repose for construction defect claims, which statute indicated that that it runs from the date of substantial completion of the home, and if you discovered, on September 1, 2017, a construction defect which existed in the home, you would not be able to wait six years from your September 1, 2017 discovery to file your construction defect claim, but would likely need to file your claim within six years of September 1, 2012.

Multiple Statutes of Limitation

Although people often speak of “the statute of limitations,” in fact there are many statutes which apply limitations periods to civil actions. For example, you may have a business dispute against a business partner which may lead to more than one theory or “cause of action” on which you could sue, such as if you feel you were defrauded and if you also feel a written contract was breached.  Some of your claims may have expired, but others may not have, since, for example, a fraud claim might need to be brought within three years but a claim on the written contract could be brought within six years.  Sometimes it can be difficult to keep track all of the various statutes and their multiple exceptions. Thus it is important if you are concerned about losing your right to sue before the expiration of the statutory limits that you consult with a qualified Nevada lawyer, who can help determine which deadlines apply, and timely file a complaint to preserve your rights.  Don’t wait until a few days before the deadline expires to consult with experienced legal counsel.  This is unfair to both of you and may prevent the best possible pleading from being prepared before the deadline bars your action.

Civil Claims and Actions

The following periods represent just a small sample of the statutory limitations periods which have been adopted in Nevada. Please note that it is usually possible to assert a variety of causes of action arising from a single incident of wrongful conduct.  For example if someone stole something valuable, he may be liable for civil theft, conversion, trespass, etc.  His supervisor or employer might be responsible under respondeat superior claims.  Thus, even if it appears that the relevant statute of limitations may have run on one claim, it may still be possible to bring a different but related claim. Also, there may be an exception to the standard limitations period that applies to any given situation, or a period of tolling which has occurred before the statute began to expire. For example, as discussed above, if the defendant concealed his fraud from you, the statute may not run until you discover or should have discovered the fraud.  The following list is provided by way of example. If you wish to know how the statute of limitations applies to a specific situation, you should verify the statutory time period and its relevance to your situation with a qualified Nevada law firm, such as Albright Stoddard Warnick & Albright.

Professional Malpractice:  Within 4 years after the plaintiff sustains damage or within 2 years after the plaintiff discovers or through the use of reasonable diligence should have discovered the material facts which constitute the cause of action, whichever occurs earlier, tolled during any time period any wrongful act or error or omission is concealed..

Medical Malpractice:  These actions must be filed within three years of the date of the act or omission giving rise to the injury, or within one year of the date the injury was or should have been discovered by the patient, whichever is earlier. The statute of limitations for a wrongful death suit caused by medical malpractice is 2 years from the date of death. If a minor child suffers an injury due to negligence of the healthcare provider, the parents have the 3-year statute of limitations within which to file a claim. However, if brain damage or birth defects result from the negligence, the family has until the 10th birthday of the minor child to file a claim. If the minor child becomes sterile because of the medical malpractice, suit must be filed within 2 years of the date of the injury.

Medical Malpractice $350,000 limitation on noneconomic damages: NRS 41A.035 Limitation on amount of award for noneconomic damages. In an action for injury or death against a provider of health care based upon professional negligence, the injured plaintiff may recover noneconomic damages, but the amount of noneconomic damages awarded in such an action must not exceed $350,000.

(Added to NRS by 2004 initiative petition, Ballot Question No. 3)

Summary of Significant Nevada Statutes of Limitation

Description Statute
Assault and Battery,  2 years Nev. Rev. Stat. § 11.190(4)(c)
Breach of a Written Contract, 6 years Nev. Rev. Stat. § 11.190(1)(b)
Breach of an oral or verbal Contract, 4 years Nev. Rev. Stat. § 11.190(2)(c)
False Imprisonment of another person, 2 years Nev. Rev. Stat. § 11.190(4)(c)
Fraud, 3 years Nev. Rev. Stat. § 11.190(4)(c)
Enforcing Court Judgments, 6 years (Plaintiff must renew judgments every 6 yrs) Nev. Rev. Stat. § 11.190(1)(a)
Legal/Professional Malpractice, 2 or 4 years (Depending on when the malpractice is “discovered.”) Nev. Rev. Stat. § 11.207
Libel, 2 years Nev. Rev. Stat. § 11.190(4)(c)
Medical Malpractice, 1 or 3 years (Depending on when the malpractice is “discovered.”) Nev. Rev. Stat. § 41A.097(1)
Personal Injury/negligence, 2 years Nev. Rev. Stat. § 11.190(4)(e)
Product Liability, 2 years Nev. Rev. Stat. § 11.190(4)(e)
Property Damage, 3 years Nev. Rev. Stat. § 11.190(3)(c)
Slander, 2 years Nev. Rev. Stat. § 11.190(4)(c)
Trespass, 3 years Nev. Rev. Stat. § 11.190(3)(b)
Wrongful Death, 2 years Nev. Rev. Stat. § 11.190(4)(e)

  Statute of Limitations or Statute of Repose

A statute of repose is different from a statute of limitations, in that after the statutory period has expired it is not possible to file a lawsuit even if the wrongful act has not been discovered until long after it occurred or an injury occurs after that time.   A statute of repose starts to run from a specified date identified in the statute, for example, with respect to construction defect claims, the statutes of repose in Nevada run from the date of substantial completion of the improvement.  A statute of limitations, on the other hand, typically starts to run on the date of the wrongful act, or the date of injury or the date the wrongful act or injury was discovered.  In Nevada, certain Statutes of Repose have been adopted to protect those involved in the construction industry such as architects, engineers, contractors and subcontractors.  Due to the proliferation of construction defect litigation in Southern Nevada, the legislature has adopted a variety of statutes of repose, depending on the nature of the defect (latent, patent, etc.) which are summarized as follows:

For patent construction deficiencies, the statute of repose is six (6) years, unless the injury occurs in the sixth year, in which case the statute of repose is eight (8) years.  NRS 11.205.  For latent construction deficiencies an eight (8) year statute of repose applies unless the injury occurs in the eighth year, creating a ten (10) year statute of repose.  NRS 11.204.  Deficiencies known to the Defendant to be deficient are subject to a statute of repose of ten (10) to twelve (12) years after completion.  NRS 11.203.  Again, because these are statutes of repose, not statutes of limitation, they begin to run immediately upon substantial completion of the improvement, regardless of the date of discovery of some claimed deficiency in construction.  Under NRS 11.202, a construction defect which has been fraudulently concealed may not be applicable to any statute of repose, but the claim will still need to be brought within whatever statute of limitations period may apply (depending on the theory of the case) within the applicable period after discovery.

Statutes of Repose in Nevada

Willful or fraudulently concealed deficiencies No Statutes of Repose time limit deadline NRS 11.202
Known Deficiencies 10 years* NRS 11.203
Latent Deficiencies (not apparent by reasonable inspection) 8 years* NRS 11.204
Patent Deficiencies (apparent by reasonable inspection) 6 years* NRS 11.205

 

* When an injury occurs in the last year, the claimant has 2 years after the injury to file suit. 

Accrual of Claims

A statute of limitations typically starts running at the time a claim accrues. Generally, that is the time at which an injury is suffered.

The Discovery Rule

Sometimes it is not reasonably possible for a person to discover the cause of an injury, or even to know that an injury has occurred, until considerably after the act which causes the injury. For example, an error in the drafting of a will might not be noticed until the will is being executed, decades after it was drafted, or a financial planner’s embezzlement might not be noticed for years due to the issuance of false statements of account, a medical error may not be discovered until it is manifested by a physical malady, the fraudulent theft of assets, if well concealed, may take years to discover.

When it applies, the “discovery rule” permits a suit to be filed within a certain period of time after the injury or wrongful act causing the injury, is discovered, or reasonably should have been discovered by the injured victim. The discovery rule does not apply to all civil injuries, and sometimes the period of time for bringing a claim post-discovery can be short, so it is important to seek legal assistance quickly in the event of the late discovery of an injury.  These deadlines are often modified by the Nevada Legislature to protect certain groups, so it is best to check with experienced litigators quickly. 

Tolling of the Statute of Limitations

In addition to late discovery, it may be possible to avoid the harsh result of a statute of limitations by arguing that the statute has been “tolled” through other means. When it is said that a statute is “tolled”, it means that something has stopped the statute from running for a period of time. Typical reasons for tolling a statute of limitations, in addition to later discovery, include minority (the victim of the injury was a minor at the time the injury occurred), mental incompetence (the victim of the injury was not mentally competent at the time the injury occurred), and the defendant’s bankruptcy (the “automatic stay” in bankruptcy ordinarily tolls the statute of limitations until such time as the bankruptcy is resolved or the stay is lifted).

Medical Malpractice Involving Minors

Under Nevada law, except in cases of medical malpractice, the statute of limitations begins to run on a minor’s eighteenth birthday. For medical malpractice actions, Nevada parents are generally responsible for bringing an action on behalf of a minor child within the limitations period. However, in cases where malpractice results in either brain damage to a minor, or in a birth defect, a lawsuit that would otherwise be time-barred may be filed at any time prior to the minor’s tenth birthday. Where a minor’s injury results in sterility, the action must be filed within two years of the date the injury was discovered.

Contractual Limitations

It is often possible to shorten a statutory limitations period by contract. For example, an employment contract might require that any claim relating to the employment relationship, including wrongful termination, be filed within one year of the claimed wrongful conduct. Courts often uphold these clauses, particularly in the context of business transactions, even though they provide for a shorter limitations period than the statute of limitations would otherwise apply. 

Arbitration Clauses

Many contracts also contain mandatory arbitration and/or mediation clauses, which are also favored by the courts.  If you file a civil claim with the courts, the other party may simply respond with a motion to stay (stop) the litigation and hold it in abeyance, while the court compels arbitration.  Call us at Albright, Stoddard, Warnick & Albright to review your civil claims, contractual or arising in tort, before losing your rights by the expiration of a statute of limitations!

About the Authors: The law firm of Albright, Stoddard, Warnick & Albright is an A-V Rated Nevada-based full-service law firm having attorneys licensed in Nevada, California and Utah. Our firm’s practice includes a strong emphasis on litigation, including commercial and tort (injury) matters.  

Note: This article, and any other information you obtain at this website, is not offered as legal advice, nor should it be relied upon as such, nor is it a solicitation for legal services. Only a licensed attorney can advise you with respect to your specific legal needs. We welcome your contacting our firm to discuss such representation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.  

THE ADVANTAGES AND DISADVANTAGES OF ADR

 

By G. Mark Albright, Esq.    

Advantages to Arbitration:

1. More flexibility.  In the case of arbitration, the parties have far more flexibility to select what procedural and discovery rules will apply to their dispute (they can choose to apply relevant industry standards, domestic law, the law of a foreign country, etc.).

2. Select your own Arbitrator or Mediator.  The parties can often select the arbitrator or mediator that will hear their case, typically selecting someone with expertise in the substantive field involved in the dispute.  The arbitrator (or panel members) need not even be an attorney.  In this way the focus can be on the substantive issues involved rather than on technical procedural rules.  In normal litigation, the parties cannot select the judge, and the judge and/or jury may often need expert witnesses to explain extremely complex issues.  The greater the expertise of the arbitrator, the less time that needs to be spent bringing him up to speed.

3. A jury is not involved.  Juries are unpredictable and often damage awards are based solely on whether they like the parties or are upset at one party because of some piece of evidence such as a photo that inflames the passion of the jury. Juries have awarded claimants damages that are well above what they would have received through alternative dispute resolution; and they have also done the opposite.

4. Expenses are reduced.  Attorneys and expert witnesses are very expensive.  Litigating a case can easily run into the tens of thousands of dollars.  Alternative dispute resolution offers the benefit of getting the issue resolved quicker than would occur at trial – and that means less fees incurred by all parties.

5. ADR is speedy.  Trials are lengthy, and in many states and counties it could take years to have a case heard by a judge or jury. Appeals can then last months or years after that. In a matter of hours, an arbitrator often can often hear a case that otherwise may take a week in court to try with live witnesses.  With arbitration, the evidence can be submitted by documents rather than by testimony presented through witnesses. ADR can be scheduled by the parties and the panelist as soon as they are all able to meet together.

6. The results can be kept confidential.  The parties can agree that information disclosed during negotiations or arbitration hearings cannot be used later even if litigation ensues.  The final outcome can also be made private if the parties so stipulate and agree.  On the other hand, most trials and related proceedings are open to the public and the press.

7. Party participation.  ADR permits more participation by the litigants. ADR allows the parties the opportunity to tell their side of the story and have more control over the outcome than normal trials overseen by a judge.  Many parties desire the opportunity to speak their piece and tell their side of the story in their own words rather than just through counsel.

8. Fosters cooperation.  ADR allows the parties to work together with the neutral arbitrator or mediator to resolve the dispute and come to a mutually acceptable remedy.

9. Less stress.  ADR is often less stressful than expensive and lengthy litigation. Most people have reported a high degree of satisfaction with ADR.

10. Conclusion.  Because of these advantages, many parties choose ADR (either mediation or arbitration) to resolve disputes instead of filing or even proceeding with a lawsuit after it has been filed.  It is not uncommon after a lawsuit has been filed for the court to refer the dispute to a neutral before the lawsuit becomes too costly. ADR has also been used to resolve disputes even after trial, while an appeal is pending.

11. Sample subject matters.  Some examples of disputes that can be settled by ADR include but are not limited to:

  • Business disputes- contracts, partnerships, ownership

  • Property / Land use disputes- property transfers, boundaries, easements

  • Family disputes- divorce, property, custody, visitation, support issues

  • Consumer / Collection disputes- repairs, services, warranties, debts, loans

  • Employment disputes- employment contracts, terminations, non-compete

  • Landlord/tenant disputes- evictions, rent, repairs, security deposits

  • Neighborhood disputes / Relational disputes or other civil or personal conflicts

  • Personal Injury disputes / Insurance disputes- accidents, coverage, liability issues

Disadvantages of ADR:

1. There is no guaranteed resolution.  With the exception of arbitration, alternative dispute resolution processes do not always lead to a resolution. That means it is possible that you could invest the time and money in trying to resolve the dispute out-of-court and still end up having to proceed with litigation and trial before a judge or jury.  However, you will certainly better understand the other side’s position!

2. Arbitration decisions are final.  With very few exceptions, the decision of a neutral arbitrator cannot be appealed, with fraud being an obvious exception.  Additionally, some states will not enforce decisions of arbitrators that are patently unfair, a high standard to meet.  Another ground for setting aside an award is if the arbitrator’s decision exceeded the scope of the arbitration clause or agreement.  Some arbitration clauses are broad, others are narrowly limited to specific disputes.  Decisions of a court, on the other hand, usually can be appealed to an appellate court for a variety of legal grounds and for numerous alleged procedural errors.

3. Limits on Arbitration Awards.  Arbitrators can only resolve disputes that involve money.  They cannot issue orders compelling one party to do something, or refrain from doing something (also known as injunctions).  For example, Arbitrators generally cannot change title to real property.  Of course this is subject to the specific language of the arbitration clause.

4. Discovery limitations.  Some of the procedural safeguards designed to protect parties in court may not be present in ADR, such as the liberal discovery rules used in U.S. courts, which make it relatively easy to obtain evidence from the other party in a lawsuit.

5. Fee for the Neutral.  The neutral mediator or arbitrator charges a fee for his or her services.  Depending on the arbitrator or mediator selected, the fees can be substantial (of course the parties typically agree to divide the fees between themselves).  Depending on the contract language and state law, a prevailing party can be awarded fees and costs.  A judge on the other hand, charges no fees for his services.

6. May have no choice.  Often the contract in dispute contains a broadly worded mandatory arbitration clause.  Many lease agreements and employment contracts, for example, contain mandatory arbitration provisions, as do operating agreements and other types of business contracts.  Unless both parties waive arbitration, most states will compel arbitration at the request of any party.

7. Non-binding arbitration.  Sometimes the court may order nonbinding or Judicial Arbitration.  This means that if a party is not satisfied with the decision of the arbitrator, they can file a request for trial with the court within a specified time period after the arbitration award.  Depending on the process ordered, if that party does not receive a more favorable result at trial, they may have to pay a penalty or fees to the other side.

8. Warning.  The parties pursing ADR must be careful not to let a Statute of Limitation run while a dispute is in any ADR process.  Once the statute expires, judicial remedies may no longer be available.

Mediation:

In mediation, the mediator (a neutral) assists the parties to come to a mutually acceptable resolution of their dispute.  The parties may meet altogether in the same room, or often stay in separate offices and the mediator moves back and forth between the parties.  Unlike a judge at a trial or an arbitrator at an arbitration hearing, the mediator does not decide how to resolve the dispute.  The parties themselves decide how best to resolve or settle their own dispute.  The parties work together to come to a mutually acceptable compromise that satisfies everyone, instead of working against each other.  Mediation often leads to better communication between the parties and lasting resolutions.  This can be particularly important when parties have a continuing relationship with each other, such as neighbors or businesses.  It can also be effective where personal feelings are getting in the way of a resolution and a professional mediator can be brought in to act as a go-between.  Mediation normally gives the parties a chance to express their concerns in a voluntary, confidential process while working towards a resolution and compromise.  Mediation can provide the greatest level of flexibility for parties.  It’s a good sign when everyone leaves the mediation feeling like they gave up something.  This type of resolution is particularly helpful in high stakes litigation when a run away jury could break a business.

Conclusion:

There is no single answer as to whether to pursue litigation or ADR. Instead, the circumstances of each case need to be weighed and carefully analyzed by all concerned parties.  Knowing all the options is an important first step.  This can be done by considering the advantages and disadvantages of each proposed ADR method and discussing it with trusted and experienced legal counsel.

About the Authors: The law firm of Albright, Stoddard, Warnick & Albright is an A-V Rated Nevada-based full-service law firm having attorneys licensed in Nevada, California and Utah. Our firm’s practice includes a strong emphasis on litigation and dispute resolution, including representing clients in all forms of alternative dispute resolution and serving as mediators in private dispute resolutions for third parties.

Note: This article, and any other information you obtain at this website, is not offered as legal advice, nor should it be relied upon as such, nor is it a solicitation for legal services. Only a licensed attorney can advise you with respect to your specific legal needs. We welcome your contacting our firm to discuss such representation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

 

 

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