Quick Answer: Both statutes of limitation and statutes of repose limit the time a person has to file a lawsuit. There are a number of differences, but the most important one is when the ‘clock starts ticking’.
- For statutes of limitation, the clock usually starts ticking when plaintiffs discover they have been injured.
- For statutes of repose, there is usually a fixed period of time from the event that injured the plaintiff, and it doesn’t matter when the injury was discovered.
Comparing Statutes of Limitation vs. Statutes of Repose
Victims have a right to obtain compensation for asbestos exposure and other injuries. At the same time, construction companies and other lawsuit defendants have a right to move on. No one should have to look over their shoulder and be forced to defend lawsuits arising from decades-old incidents. In the mid 2010s, these items were the main issues in sexual abuse actions against the Boy Scouts of America, the catholic church, and other institutions.
Statutes of Limitation
Many people are at least somewhat familiar with the SOL. The statute of limitation, which applies in most negligence actions, strikes a middle ground between these two competing interests. Most states have a two year statute of limitations in negligence actions. A few states have three or even four year negligence SOLs. The clock starts running when the victim discovers the full extent of his/her injury. More on that below.
Statutes of Repose
A statute of repose, which applies in some construction defect claims, is different. The clock begins ticking when the construction work is substantially complete. In most states, the statute of repose is about ten years. The statute of repose is not subject to the discovery rule, which we promise to discuss below. That fact could affect a lawyer’s decision to pursue a legal claim against a negligent property owner or a construction company.
Building a Claim
Statute of limitations/statute of repose is an affirmative defense in a civil lawsuit. Before an asbestos lawyer worries about possible defenses, an attorney must build a claim for damages. This means researching and collecting evidence that the plaintiff was injured, and how much was lost so the court can calculate proper compensation.
If the claim isn’t solid enough, a judge could throw it out of court, whether or not a defense applies.
Two Possible Claims in Asbestos Lawsuits
We mentioned the two major types of asbestos lawsuits above. Attorneys build these cases in different ways, as follows:
|Negligent Property Owner:||Basically, property owners are negligent if they know about a property hazard, like possible asbestos exposure, and don’t properly address it. |
These cases vary in different states, mostly because the level of legal responsibility is different in different jurisdictions. Additionally, the victim/plaintiff must prove, by a preponderance of the evidence (more likely than not), that the asbestos exposure happened at that property.
Lawyers call this element causation.
|Construction Defect Claims:||In these matters, victim/plaintiffs don’t have to prove negligence. They must only prove causation. So, from a purely legal standpoint, these cases are more straightforward. However, they’re harder to successfully resolve. Unlike individual property owners, most construction companies have vast financial resources. They use these resources to strongly contest these claims.|
Worker’s Compensation and Veterans Disability Claims for Asbestos Injuries
If the exposure occurred on the job or during a period of military deployment, victims could file workers’ compensation or Veterans Administration disability claims. Workers’ compensation pays no-fault benefits that cover economic losses, such as medical bills and lost wages. VA disability claims are similar in many ways.
If you may have been exposed to asbestos, speak with your healthcare provider about tests and screening to help detect the presence of asbestos fibers and asbestos-related damage.
The latency period for mesothelioma and other asbestos exposure-related conditions could be more than seventy years. Our math skills are limited, but we’re pretty sure seventy is a larger number than two. So, the statute of limitation appears to bar most asbestos negligence claims.
But not so fast. Almost all state courts use the delayed discovery rule. Victims have no legal obligation to bring legal claims until they:
- Know the complete extent of their injuries, and
- Connect those injuries with another person’s negligence.
Understanding Defenses in an Asbestos Injury Lawsuit
Assume Mike worked on the World Trade Center construction project in 1972. Workers like our hypothetical Mike put around 2,000 tons of asbestos inside the WTC. In 2022, Mike’s doctor says he has mesothelioma. Although the negligence statute of limitations expired many years ago, Mike has until 2024 to file a legal action.
Other negligence defenses include comparative fault and assumption of the risk. Comparative fault shifts accident responsibility from one party to another. Assumption of the risk is the voluntary assumption of a known risk.
Many Legal Defenses Do Not Apply in Construction Defect Claims
These defenses are usually unavailable in construction defect claims. These defendants are usually strictly liable for any resulting injuries. However, the statute of repose could apply. If that’s the case, Mike cannot file a claim against the construction company, even though he had no idea he was sick when the initial ten-year period expired.
Many Legal Defenses Do Not Apply in Veterans Disability or Workers’ Compensation Claims
Additionally, these defenses usually don’t apply in VA disability or workers’ compensation claims. Causation is usually the only issue in these claims. In all asbestos cases, it’s difficult to identify a specific cause, especially after so many years have passed. However, the burden of proof in most civil claims is only a preponderance of the evidence (more likely than not). That’s a very low standard of evidence. So, a little proof goes a long way in these situations.
AsbestosClaims.law is your comprehensive resource for all things asbestos. We hope this information is helpful.
If you have any additional questions or concerns related to asbestos, check out our website and Youtube page for videos, infographics and answers to your questions about asbestos, including health and safety, asbestos testing, removing asbestos from your home and building, and legal information.
And if you believe that you were exposed to asbestos, or have been diagnosed with an asbestos illness, you could be entitled to significant compensation—money you could use to cover the costs of asbestos removal services, pay for medical treatment, and preemptively protect your physical well-being.
All without filing a lawsuit.
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