Under Code of Civil Procedure section 335.1 the period for filing a lawsuit for an injury caused by another person’s wrongful act or neglect is two years. As a general rule, the two years are counted from the day of the crash. For a claim against a public entity for injury to a person, Government Code section 911.2 provides that the claim shall be presented to that entity within six months.
Why serious injuries can feel like nothing at first
Endotext, an endocrinology reference published on the NCBI Bookshelf, describes stress-induced analgesia, a reduction in pain perception produced when the body’s stress response inhibits the pathways that carry pain signals to the brain. Feeling little pain at the scene of a crash can therefore be a perceived state rather than a medical finding.
According to Mayo Clinic, symptoms of whiplash most often start within days of the injury. Mayo Clinic’s overview of concussion symptoms states that symptoms may occur right away or in the hours and days after an injury. The CDC’s guidance on signs and symptoms of traumatic brain injury states that some mild TBI and concussion symptoms may appear right away, while others may not appear for hours or days after the injury.
According to NCBI’s StatPearls reference on lumbar disc herniation and radiculopathy, pain from a compressed nerve root is frequently described as sharp or burning and usually radiates along the path of that nerve.
The filing period
Code of Civil Procedure section 335.1 gives two years to file. It applies to “an action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.” Under Code of Civil Procedure section 350, an action is commenced when the complaint is filed. As a general rule, the two years are counted from the day of the crash. For a claim against a public entity of California, such as a city, a county or the State, Government Code section 911.2 provides that a claim for injury to a person shall first be presented to that entity within six months. Pain that appears days or weeks after the crash does not change these periods. An attorney can confirm which period applies to your case.
Public entity defendants and children
Under Government Code section 811.2, a “public entity” includes the state, a county, a city, a district, a public authority, a public agency, and “any other political subdivision or public corporation in the State.”
Government Code section 911.2 applies to a claim against a public entity for injury to a person. It provides that the claim shall be presented to that entity “not later than six months after the accrual of the cause of action.”
When a claim is not presented within those six months, Government Code section 911.4 allows a written application to the public entity for leave to present it. Under that section, the application shall be presented “within a reasonable time not to exceed one year after the accrual of the cause of action.”
Except as sections 946.4 and 946.6 provide, Government Code section 945.6 requires a lawsuit against a public entity on a cause of action that requires a claim, if written notice is given in accordance with section 913, to be commenced “not later than six months after the date such notice is personally delivered or deposited in the mail.” If that notice is not given, section 945.6 requires the lawsuit to be commenced “within two years from the accrual of the cause of action.”
Code of Civil Procedure section 352, subdivision (a), covers a person who is under the age of majority when the cause of action accrues. For that person, “the time of the disability is not part of the time limited for the commencement of the action.” Under Family Code section 6500, a minor is an individual “under 18 years of age.” The two-year filing period does not begin until the individual turns 18 years old. Subdivision (b) of section 352 states that the section “shall not apply to an action against a public entity or public employee upon a cause of action for which a claim is required to be presented” under the Government Claims Act.
In computing the one-year period for a late-claim application under section 911.4, the time during which the injured person is a minor “shall be counted.” Under Government Code section 911.6, subdivision (b)(2), the public entity’s board shall grant that application if the injured person “was a minor during all of the time specified in Section 911.2 for the presentation of the claim.”
Releases and your own insurance
Civil Code section 1542 states that a general release “does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
Under Insurance Code section 11580.2, subdivision (i)(1), no cause of action shall accrue to the insured under uninsured motorist coverage unless one of the actions the subdivision lists has been taken “within two years from the date of the accident.” The listed actions are a lawsuit for bodily injury filed against the uninsured motorist in a court of competent jurisdiction, an agreement on the amount due under the policy, or arbitration formally instituted by written notice to the insurer sent by certified mail, return receipt requested.
Related reading
Our guide to the steps to take after a serious car accident covers what to keep from the first days. Our article on what counts as a catastrophic injury describes how those cases are approached. You can also read how the firm handles auto accident matters and personal injury claims.