property damage claim

How Long Do You Have to File a Property Damage Claim

07/16/2019
By Logan Quirk

The term ‘property damage claim’ is likely one you’ve heard before in relation to accidents, insurance, and resulting lawsuits. However, there is the possibility for confusion because there are technically two types of these claims – our focus will be on the legal kind.

When an accident causes damage to property, the resulting insurance claim is often referred to as a ‘property damage claim’. If you are aware of who caused the damage and they admit fault, it is a simple process of filing a claim through the at-fault party’s insurance policy. If you have no idea who has caused the damage (e.g. hit and run), you will often have to file through your own insurance, and potentially pay a deductible and see an increase in rates on renewal.

If the other party disputes they were at fault, or you later discover who the party was, the best way to receive compensation is by filing a property damage claim lawsuit. Just like a personal injury suit, this is a suit filed in court and as such, there are certain procedures that must be followed as well as a statute of limitations and exceptions to this statute. In this article, we’ll take a look at what a property damage claim is, how long you have to file it, and what to do if you miss the deadline.

What Is a Property Damage Claim?

A property damage claim is a lawsuit filed that seeks compensation that will go towards the repair or replacement of property that has been damaged or destroyed. The California Code of Civil Procedure section 338 describes it as:

  • an action for trespass upon or injury to “real property”,
  • an action for taking, detaining, or injuring goods or chattels.

Sifting through the legal jargon, “real property” refers to your land and home or any other structure on your property. Meanwhile, “chattels” refer to any other type of property. In most cases, this will be a vehicle, but it can refer to any property at all including furniture, electronics, clothing, etc.

As the definition suggests, you are not limited to making a claim on damage to your vehicle in the case of an automotive accident. The contents of your car can also be claimed in a property damage suit if they were damaged or destroyed as a result of the collision. For instance, if your $2,000 laptop was in the backseat, and in the collision was thrown forward and smashed against the dashboard, you could certainly make a claim for it.

What Is The Statute Of Limitations On A Property Claim?

The same C.C.P. section states that, in the state of California, the statute of limitations on property claims is three years. This is three years from the time of the accident – not three years from the time of filing or being denied an insurance claim.

Often, claims will be made for both personal injury and property damage at the same time. Regardless of whether your property damage claim is a standalone one, or is part of a combined suit, the three-year time limit still stands. For example, you may have filed a combined suit two years and two months after the accident, claiming you had only discovered your injury recently. However, the court found that you should have discovered the injury before, and summarily dismissed the case. Your property damage claim cannot be dismissed at the same time, as you are within the statute of limitations.

Exceptions To The Statute of Limitations

But what happens if you attempt to file a property damage claim with the courts more than three years after an accident or other incident resulting in property damage? In the average case, the defense will put forward a motion for dismissal due to you missing the deadline – and the court will grant this dismissal. It is therefore extremely important to begin the insurance settlement process as soon as possible and retain the services of an attorney. Your attorney will be able to counsel you on whether the other party is stalling and when you should file a claim with the courts.

However, there are a number of situations that can result in temporary exemptions from the three-year deadline. This stopping of the clock (known as ‘tolling’) effectively extends the statute of limitations. These exceptions are very specific, so it is in your best interest to be familiar with them.

Plaintiff Was A Minor

If the plaintiff is under the age of 18, California Code of Civil Procedure section 352 states that the statute of limitation will not begin until he or she achieves the legal age of majority (18).

Lack Of Legal Capacity

If, at any point during the statute of limitations period, the plaintiff is found to be “lacking the legal capacity to make decisions”, the ‘clock’ will be stopped until the plaintiff is again legally capable. Examples of conditions that can cause a lack of legal capacity include:

  • A mental health condition
  • Diminished mental capacity due to medication
  • Diminished mental capacity due to illness
  • Brain Injury
  • Stroke
  • Dementia
  • A Learning Disability

You may notice that while some of these are or can be temporary, others are permanent conditions (e.g. dementia, severe brain injuries, etc). In cases of the latter, the tolling (i.e. suspension) of the statute of limitations can be used to institute a guardianship or power-of-attorney to act on the plaintiff’s behalf.

Plaintiff Imprisonment

If the plaintiff is imprisoned during the statute of limitations period, tolling occurs either until his or her release or at the end of two years, whichever comes first.

The Alleged Offending Party Left The State

In order to avoid a particularly significant payout, the offending party may leave the state of California in an attempt to ‘wait out’ the statute of limitations. However, the law protects plaintiffs against this – time the potential defendant spends out of state does not count towards the statute of limitations clock. Even if the absence is due to a legitimate reason (e.g. the defendant works abroad), the tolling will still occur until he or she returns to California.

The Alleged Offending Party Dies

There is even a provision for if a person who action may have been brought against dies before the expiration of the statute of limitations. The potential defendant’s death does not necessarily render the cause of action moot. Following the death of the defendant, a plaintiff has one year to pursue a claim (like against the estate of the deceased). This new filing period is independent of the original statute of limitations.

The Plaintiff Dies

A cause of action can survive the death of a plaintiff as well. If it does survive, then those acting on his or her behalf up to 6 months after the plaintiff’s death to commence action – even if the statute of limitations expires before that time.

The Property Damage Stemmed From A Proven Felony Offence

Another way the statute of limitations can be extended is if the damage occurred during the commission of a felony offense. A hit and run that results in no injuries and minor damage with generally be considered a misdemeanor. However, if a person is seriously injured or killed during a hit and run, this is considered a felony offense, as outlined by the California Vehicle Code 20001. If a defendant is convicted of a felony offense related to the property damage, you now have up to one year following the conviction to file a property damage suit, even if the statute of limitations has expired.

For example – in 2015, you were rear-ended, resulting in a permanent neck injury and your vehicle being written off. The offending party sped off and was not apprehended. In 2019, a tip led to the culprit being arrested and subsequently convicted of felony hit and run. Both the two-year statute of limitations for personal injury and three-year property damage limit have expired. However, since the defendant has been convicted of a felony offense, you now have one year to file suit for both personal injury and property damage (and almost certainly win a handsome judgment!).

Bankruptcy

Contrary to what some believe, bankruptcy does not automatically and permanently protect defendants from having to pay restitution. Instead, the ability to bring action against them is paused for the period of the declared bankruptcy. At the same time, the law protects plaintiffs from losing their ability to file suit due to the statute of limitations – the SOL period is tolled for as long as the bankruptcy exists.

If the defendant in your case files for bankruptcy, it is absolutely imperative to secure an experienced accident/property damage/personal injury attorney. This is because federal law and state law can differ on the rules for filing or refilling a property damage suit following bankruptcy protection. Your attorney will ensure that you do not miss the correct deadline.

Delayed Discovery

‘Discovery’ occurs when the plaintiff actually becomes aware of the harm caused – in this case, property damage. In the case of personal injury, it is common for the statute of limitations to begin on the discovery of an injury that was not apparent rather than from the time of the accident. Theoretically, this type of discovery can also apply to property damage – but it is quite difficult to argue in the case of an automotive accident.

The reason for this is that the defense can argue that, even if the plaintiff did only discover the damage after the statute of limitations had expired, they should reasonably have discovered it earlier. The argument would likely be similar to this “after a collision, any reasonable and responsible person would get their vehicle checked for damage.” A judge would likely side with the defense here. So even if there isn’t obvious damage after an accident, it is in your best interest to have your vehicle thoroughly looked over.

Delayed discovery is more likely to be successful in cases of ‘real’ property damage, where the damaged property can more reasonably go undiscovered for a period of time. For instance, when the time comes to change your roof tiles, it is discovered that your neighbors hit a baseball onto your roof, breaking through the tiles and allowing rainwater in to rot the framing. If you are able to prove it was indeed due to their actions, the statute of limitations would begin on the discovery of the damage – not when the ball caused the damage.

How To Strengthen Your Property Damage Case

Whenever property damage occurs, there are certain things you can do and not do which will increase your chances of having a successful property damage claim, including:

  • Never admit fault for an accident
  • Report property damage to your insurance company immediately
  • If you are uninsured but not at fault, you can file a claim with the other party’s insurer – but ensure you enlist the services of a knowledgeable attorney
  • Notify the California DMV within 10 days if anyone was hurt or injured, or if more than $1,000 in property damage occurred

Experienced California Property Damage Lawyers

At Quirk Law Group, we have extensive experience in both personal injury and property damage claims. As our many satisfied clients can attest, we will fight for you and get you the compensation you deserve.

You should never find yourself paying out of pocket or with skyrocketing insurance premiums due to property damage. We use our expertise to protect your rights, even in the most challenging of situations. For instance, we can file a ‘John/Jane Doe’ case when the offending party is not known, which both prevents the statute of limitations from expiring before action is taken and gives us legal tools to help track down the culprit. In an accident where you may be partly at fault? We can still secure damages for you under the law.

An experienced lawyer like Logan Quirk will help you get a better settlement, all the while protecting you against the tactics insurance companies employ in order to avoid giving a fair payout. If you are the victim or property damage, we can let you know what your options may be. Even if the statute of limitations has expired, we will look at your case during a free consultation to see if any exceptions may apply. Contact us today to book your complimentary consultation!

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