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Statutes of Limitation or “Prescription” in Louisiana Personal Injury

February 7th, 2014
On behalf of David Bowling of The Bowling Christiansen Law Firm, A Professional Law Corporation posted in Legal Information on Friday, February 7, 2014.


We are often asked “what is the statute of limitations in Louisiana for a personal injury claim?” and “what is the statute of limitations in Louisiana for a medical malpractice claim?” The short answer to both questions is one year. If it was as simple as that, though, there would only be one statute of limitation, rather than numerous codified laws addressing the issue. There would not be literally thousands of court decisions interpreting the various nuances of Louisiana law pertaining to the time limits to bring legal claims. Thus, The Bowling Christiansen Law Firm presents this article on statutes of limitations, or “prescription” as the concept is referenced in Louisiana practice, with a huge caveat: Louisiana prescription law is complex and subject to numerous exceptions. There are significant questions as to when the one-year period is triggered and how and when the running of the prescriptive period stops. Prescription questions can usually only be accurately answered by qualified legal counsel in a case-specific context. The one generalization that can be made is that for individuals seeking to make claims, the risks of having a prescription problem do not lessen with the passage of time. If you think that you have a claim that you want to explore pursuing, you should seek legal counsel without delay. Legal rights can expire as time passes.

II. The Basic One Year Statute of Limitations Applicable to Louisiana Personal Injury Law

Although there are some rare exceptions in which a longer statute of limitations applies (for example, there is a two-year statute of limitations for damages caused by certain violent criminal offenses), the vast majority of Louisiana personal injury claims will be governed by a one-year statute limitations. Efforts to convince a court that a longer period of time should be applied, such as the ten-year statute of limitations for contracts claims, are rarely successful.

Generally, the occurrence of the injury caused by the negligent act is what causes the one-year clock to start ticking. Often, as in the case of an automobile accident claim, the negligent act occurs at the same time the injury occurs. In such cases, the prescriptive period starts running the day after the accident, and the statute of limitations expires on the first anniversary of the accident. Filing a suit over a car accident occurring on January 1, 2014 on January 2, 2015 is too late. In other cases, such as those involving dangerous and defective products, the manufacturer’s neglect usually precedes the use of the product which results in injury. Therefore, under the general rule, the prescriptive period is not triggered until all of the elements of the claim or cause of action coalesce. Thus, the statute limitations would not begin to run until product caused the injury, even though the faulty design or manufacture may have occurred well before that.

This analysis assumes that the case is based on the state law of Louisiana. Louisiana has a rule (there is some authority to the contrary, however) that parties cannot contractually agree to shorter prescriptive periods; other legal systems may not share that rule. For example, sustaining an injury on a cruise ship boarded in New Orleans would invoke federal maritime law rather than Louisiana law. The statute of limitations under maritime law is generally three years, but unlike Louisiana’s rule against contractual shortening of limitations periods, federal courts interpreting maritime law have found that contractual provisions reducing the three year statue of limitations are valid. Although the most common contracts in the cruise ship industry limit the time within which to file suit to one year, which coincides with the Louisiana prescriptive period, the contracts also have pre-suit notice requirements. These notice provisions for all practical purposes shorten the time within which an injury victim must take action to preserve the claim even more.

III. The Discovery Rule: The Most Common of the Rare Grounds which Excuse a Filing Beyond One Year

Although it is true that there are recognized exceptions in prescription law which can prevent a claim from being time-barred if filed outside of one year, the reality is that Louisiana law recognizes very few good excuses for not filing a suit within this one-year period of time. Quite often, we are contacted by individuals who did not get in touch with us earlier for understandable reasons. Often the life disruption caused by the injury itself makes it difficult for the injury victim to explore making a claim, and it is hard for a grieving family to focus on the legal aspects of their loss in the immediate wake of a tragedy. These understandable and sympathetic reasons for not asserting a claim earlier, unfortunately, are not sufficient in the eyes of the law to avoid dismissal of a case filed more than a year after the basis of the claim arises.

The most important exception to the rule that a claim prescribes within one year after the injurious event is what is referred to in the other 49 states as the “discovery rule.” Louisiana’s version of this rule is one of the features of Louisiana’s doctrine of “contra non-valentum,” which holds that prescription does not run against those who cannot act.

There are many people who cannot act because they do not know an injurious event has occurred. Let us suppose, for example, that a neighboring chemical plant exposes someone to a poisonous substance without their knowledge. The prescriptive period should not begin to run until the plaintiff later gets sick and then learns about the improper release of the poison. In other circumstances, a person may know that they have been injured but cannot determine the responsible party immediately. In such a case, prescription should not begin to run until the person has that knowledge.

Cases arising under the “discovery rule” are very frequently not clear-cut; there can be substantial arguments on both sides as to whether, in light of the information available to the plaintiff, the plaintiff was reasonable in not filing suit earlier. Thus, there are significant hazards in relying on the discovery rule. There are circumstances in which a plaintiff will have no choice but to rely on the discovery doctrine, but in any case in which an incident causing injury occurred prior to the discovery, the most prudent course of action upon discovery is to seek legal counsel to preserve the claim immediately.

Assuming the discovery rule can be applied to preserve a claim beyond one year, the question arises as to whether there is any limit to it. For some cases, the suit can be timely filed long after the injurious event, and indeed, many cases involving exposures to hazardous substances which do not result in disease until many years later survive defenses of prescription. However, there are significant limitations on the discovery doctrine. Without going into the often difficult distinctions between prescription which can be extended by the discovery rule and “peremption” which often cannot, suffice it to say that there are many statutes which place outside limits on the discovery rule, such is the three-year peremptive bars for claims against lawyers, accountants and some other professionals.

IV. Stopping the Clock: Doctrines of Suspension and Interruption

How do you put an end to or satisfy the prescriptive period? Typically, this is accomplished by filing a lawsuit properly. Filing a lawsuit in the wrong parish or in a court which has no jurisdiction will not cause the prescriptive period to be “interrupted” or stopped, although obtaining service of process properly within a one-year period of time will stop the period from running. Prescription is also interrupted by a timely and proper filing against one defendant who is liable along with another defendant. To borrow an example from one of our concluded cases, let us assume that a tire repair facility improperly serviced a wheel on a car, and a driver, due to a combination of his own negligence and the bad wheel, drove the car off the road and injured a passenger. If the passenger sued one defendant within the year she could timely sue the other defendant outside of a year from the accident, assuming that it was ultimately determined that the parties were both liable together, or were “solidarily” liable to use Louisiana law terminology. Of course, not suing all of the responsible parties contributing to the injury within one year within the year runs substantial risk. If the initially sued defendant is found to have no fault, that defendant cannot be solidarily liable with the defendant sued outside of a year’s time.

We hope that this article has been informative, but again, we urge the reader to contact qualified legal counsel to determine the application and effect of Louisiana prescription law in the context of a specific case. We will soon be posting an additional article on the special rules of prescription for medical malpractice cases.

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