• Kyle Persaud

How Long After a Car Accident Can You Sue?

Updated: Mar 10

If you’ve been injured in a car accident, you are likely wondering, “How long after the accident, may I file a lawsuit?”


You’ve likely heard the term “statute of limitations.” In law, the “statute of limitations” is the amount of time you have to file the lawsuit, after the cause of action “accrues.” In a car accident case, the cause of action “accrued” when the accident occurred. I’ll help you determine when you can sue after a car accident based on Oklahoma’s statute of limitations and a number of exceptions to this law.


Statute of Limitations for Auto Accidents – Usually, Two Years


The law that determines how long after an incident occurs you can sue the party at fault applies to car accidents. The statute of limitations, for most civil (that is, non-criminal) lawsuits, is found at Okla. Stat. tit. 12 § 95. This law reads:


“Civil actions other than for the recovery of real property can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards:

...

Within two (2) years: An action for trespass upon real property; an action for taking, detaining, or injuring personal property, including actions for the specific recovery of personal property; an action for injury to the rights of another, not arising on contract, and not hereinafter enumerated”

Because an auto accident lawsuit is an “action for injury to the rights of another, not arising on contract,” the statute of limitations for an auto accident is two years after the cause of action “accrues.”


Thus, if you want to sue because of a car accident, you have to file your suit within two years after the accident.


(Note: In other types of cases, there is argument as to when the cause of action “accrued.” Generally, though, this is not an issue in car accident cases, because the cause of action usually “accrued” when the accident took place – and the time of the accident can be pinpointed precisely.)


Exceptions to the two-year requirement


Like most laws, the statute of limitations has a number of exceptions. Some of these exceptions would apply in car accident cases and allow you to take action at a date later than the two-year statute of limitations requirement. Some of these exceptions include:

If the other driver intentionally caused you injury as a result of criminal actions


The statute of limitations also says,


“An action based on intentional conduct brought by any person for recovery of damages for injury suffered as a result of criminal actions, as defined by the Oklahoma Statutes, may be brought against any person incarcerated or under the supervision of a state, federal or local correctional facility on or after November 1, 2003:
a. at any time during the incarceration of the offender for the offense on which the action is based, or
b. within five (5) years after the perpetrator is released from the custody of a state, federal or local correctional facility, if the defendant was serving time for the offense on which the action is based”

Because most car accidents are just that – accidents -- and are not intentional, this law won’t apply in most car accident cases. But, if the other driver intentionally caused you harm, and his actions were criminal, then you can sue him any time he is in prison, or within five years after he is released from prison, if he is serving time for the behavior that caused you injury.


For example, if the driver was intoxicated, and was convicted of DUI, you can sue him because his conduct of driving under the influence was criminal and intentional. Or, if the driver intentionally hit you, you can sue the driver for intentionally hitting you. In both cases, the driver’s conduct was criminal, so you can sue him any time he is still in prison for the conduct that cause you injury; you can also sue him within five years after he is released.

If you are under a “legal disability”

This law says that if, at the time the cause of action accrues, you are under a “legal disability,” then, you may file the lawsuit within one year after the disability is removed. This law doesn’t define “legal disability,” but Oklahoma courts have recognized two circumstances where you are under a legal disability:

  1. You are under 18 (Tyler By and Through Tyler v. Board of County Com'rs, County of Kay)

  2. You are mentally incapacitated (Roberts v. Stith)


An Oklahoma appellate court has specifically held that a prison inmate is not under a “legal disability.” (State ex rel Lane v. $725.00)


Thus, if a car accident took place when you were a minor, you may file the lawsuit within one year after you turn eighteen. If the accident took place when you were mentally incapacitated, you may file the lawsuit within one year after you regain mental capacity. (Of course, if the one-year deadline ends before the two-year statute of limitations ends, you may still file suit within the two-year period.)


If your first lawsuit is reversed on appeal, or dismissed other than on the merits


Suppose you file a lawsuit, and the judge dismisses the suit for a reason other than on the merits. After the judge dismisses your suit, you then have one year to file after the judge dismisses the suit. (“On the merits” is a complicated legal term, and is too difficult to explain in detail in a post of this length. Black’s Law Dictionary defines “on the merits” as a “term used by a court where a decision of the court has been based on presented facts and not technical legal practice.” For example, if a judge dismissed your auto accident case because the judge believed you weren’t actually injured in the accident, the judge dismissed the case on the merits. But, if a judge dismissed your case because you filed in the wrong county, the judge did not dismiss your case on the merits.)


Also, if you file a lawsuit, and you win your lawsuit, and the other side appeals, and then the appeals court reverses your victory and rules for the other side, then you may file a new lawsuit within one year after the appeals court’s ruling.


If your claim accrued outside the state of Oklahoma


If the accident took place in another state, and you sue in Oklahoma, you may bring your suit within Oklahoma’s statute of limitations, or the other state’s statute of limitations, whichever is later. (In general, you are allowed to sue someone in Oklahoma for conduct that took place in another state, if Oklahoma has “personal jurisdiction” over the defendant. To read about personal jurisdiction, click here.)


Special emergency exceptions


On March 16, 2020, during the COVID-19 pandemic, the Oklahoma Supreme Court ordered that in any civil case, the statute of limitations would be extended for the next thirty days. Then, on March 27, the Oklahoma Supreme Court further extended the statute of limitations until May 15, 2020, in all civil cases.

No one challenged these ad hoc extensions of the statute of limitations. But, the Oklahoma Constitution gives the Oklahoma Supreme Court “general administrative authority” over all courts in the state. Under this constitutional provision, the Oklahoma Supreme Court likely had the power to extend the statute of limitations in this manner.

If I had written this post prior to 2020, I would not have written about special emergency exceptions to the statute of limitations; the idea would not have crossed my mind. But, because the state Supreme Court has established a precedent by asserting its power to extend the statute of limitations during an emergency, and because the Court may well extend the statute of limitations during future emergencies, emergency exceptions are now a part of any discussion on the statute of limitations.


Don’t wait too long – make sure you file your suit in time


If you have been injured in a car accident, make sure you don’t put off filing a lawsuit before the statute of limitations expires. If you think that your statute of limitations has expired, or may be about to expire, contact a lawyer to see if there is anything you can do to get around the deadline. The Persaud Law Office can help you determine if your statute of limitations is over. If you need help, contact us today.



Photo from Wikimedia Commons. Licensed under Creative Commons 2.0

NOTE: The information provided on this website is not intended to be, and does not constitute, the giving of legal advice. The information provided here is not intended to be, and should not be used as, a substitute for individual reliance on privately retained legal counsel. Information provided on this site may not constitute the most current or complete information with respect to legal topics or developments. Mr. Persaud expressly disclaims all liability based on any information contained on this site.”

© 2021, by Kyle Persaud.