The statute of limitations is called prescription or the prescriptive period in Louisiana. The prescriptive period is the amount of time after an event that a person has to either file a lawsuit or settle a claim relating to the event. In personal injury cases, the triggering “event” is the accident causing injury.
Louisiana’s statute of limitations (prescription) in most personal injury cases (like car accidents and slip and falls) is one year from the date of accident. See La. C.C. art. 3492. In cases against insurance companies for UM benefits, prescription is two years after the date of accident. See La. R.S. 9:5629. In Jones Act seaman cases, the period to file a lawsuit is even longer.
Thus, in most accident cases, a plaintiff (accident victim) has one year from the date of accident to either settle the claim in writing or file a lawsuit to preserve the case. If neither is done within the year, the claim is no longer viable and prescribes.
However, this does not mean that attorneys should wait until the 364th day after an accident to file a lawsuit. In fact, I prefer to file lawsuits in auto accident and slip and fall cases at least two months before the accidents’ anniversaries. I do this for several reasons. First, if something bad happens to me or there is a natural disaster (e.g., hurricane evacuation) immediately before the accident’s anniversary date, I may be unable to file the lawsuit timely, if I plan to file the lawsuit the day before the statute of limitations runs.
Second, the statute of limitations is interrupted immediately upon filing a lawsuit as long as the lawsuit is filed in a proper Parish (venue). If an attorney picks an improper venue, the statute of limitations is not interrupted unless a solidary obligor (defendant) is served with the lawsuit within the prescriptive period. See Wimberly v. Zeta Home Health Care, Inc., et. al., 07-CA-559 (La. 5 Cir. 11/27/07), 973 So. 2d 75 (suit filed in improper venue with service on some solidary obligors within one year interrupted prescription as to other named defendants not served within one year when case was later transferred to proper venue).
Thus, if an attorney picks the wrong venue, but files his lawsuit timely and a defendant is served within the statute of limitations, prescription is tolled (stopped). By filing a lawsuit two months before the anniversary date and requesting service within the Petition, I will likely not have a prescription issue even if I file in an improper venue. This is because service of process on most insurance companies and registered agents for service of process in Baton Rouge takes about 2-3 weeks after a lawsuit is filed in any Parish. By filing two months before the statute of limitation runs, I am more or less assured that at least one company defendant will be served before prescription, thus stopping the clock.
Third, I want to move my clients’ cases as quickly as possible. The moment that I realize that I will be unable to settle a case within the prescriptive period, I will file a lawsuit. The faster the lawsuit is filed, the faster I will get a trial date. Most injury cases settle, so the sooner the trial date is scheduled, the sooner the case will likely settle. A lot of work should go into a case during the prescriptive period. All the client’s accident related medical records should be obtained, and the value of the case and whether the client will need continued medical treatment should be determined. If those tasks can be accomplished, I will try to settle the case without filing a lawsuit. This practice will save the client filing costs and result in a faster settlement. But pre-lawsuit settlement is not always possible or advisable. Whether to settle or file a lawsuit should be determined on a case-by-case basis.
If you have questions about prescription, the statute of limitations, or when a lawsuit should be filed, please call Lawyer Don D’Aunoy today: 504-508-6414. Lawyer Don represents clients throughout southeast Louisiana and makes free house calls. Other attorneys are welcomed to call him as well to discuss practice and procedure.