If you have been injured in an accident you need to meet immediately with a personal injury lawyer. Waiting too long could mean you can never bring a case. Texas has strict rules regarding the Statute of Limitations for personal injury cases.
What is the law in Texas?
A personal injury lawsuit is governed by a two-year statute of limitations. See TEX. CIV. PRAC. & REM. CODE ANN § 16.003(A).
However, merely filing a lawsuit is not sufficient to avoid the expiration of a statute of limitations. See Boyattia v.
Hinojosa, 18 S.W.3d 729, 733 (Tex. App.—Dallas 2000, pet. denied). To “bring suit,” a plaintiff must file his action and have the defendant served with process. Id. A timely filed suit will not interrupt the running of limitations unless the plaintiff exercises due diligence in the issuance and service of citation. Murray v. San Jacinto Agency, Inc. 800 S.W.2d 826, 830 (Tex. 1990). If service is diligently effected after limitations has expired, the date of service will relate back to the date of filing the suit. Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990); see Boyattia, 18 S.W.3d at 733.
What will courts consider on the issue of due diligence?
Whether a plaintiff exercised due diligence in obtaining the issuance and service of citation is usually a fact issue; however, if no excuse is offered for a delay in procuring service of citation, or if the lapse of time and the plaintiff’s acts are such as conclusively negate diligence, a lack of diligence will be found as a matter of law. Perry v. Kroger Stores, 741 S.W.2d 533, 534 (Tex. App.—Dallas 1987, no writ). Texas courts have consistently held that lack of diligence may be shown based on unexplained lapses of time between the filing of the suit, issuance of the citation, and service of process. See Boyattia, 18 S.W.3d at 733.
When a defendant has affirmatively pled the limitations defense and shown service was effected after the limitations period expired, the burden shifts to the plaintiff to explain the delay. It is then the plaintiff’s burden to present evidence regarding the efforts that were made to serve the defendant. Proulx v. Wells, 235 S.W.3d 213, 216 (Tex. 2007). Diligence is determined by asking “whether the plaintiff acted as an ordinarily prudent person would have acted under the same or similar circumstances and was diligent up until the time the defendant was served.” Id. The question of diligence in effecting service is one of fact, and is determined by examining the time it took to secure citation, service, or both, and the type of effort or lack of effort the plaintiff expended in procuring service. Id.