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legalgems, Lawyer
Category: Legal
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Experience:  Just Answer consultant at Self employed
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There. I had a car accident in Jan 2014. The at-fault's

Customer Question

Hi there. I had a car accident in Jan 2014. The at-fault's insurance company was a NIGHTMERE to deal with. After my medical care was finished, they kept claiming to have not received documents and pushed communications back as far as possible. We were approaching the statue of limitations in ca which is 2 years.
They finally sent a release but the language on there was confusing and I won't go into detail here, but it was mailed just shortly after the statute expired. I spoke with a small claims lawyer who said it was ok, as long as we had signed the release that they still had to send the check...however they are now refusing to send the check.
Was the lawyer wrong? Is there anything I can do to get the check now?
Submitted: 1 year ago.
Category: Legal
Expert:  legalgems replied 1 year ago.
This is pertaining to California correct? On what basis are they refusing to send the check?
Customer: replied 1 year ago.
Yes, in CA. They said the statute was Jan 25 and they didn't receive the release until Feb 18. But the lawyer said that as long as we settled and had revived and signed the release by the last day of the statute it would be ok.
Expert:  legalgems replied 1 year ago.
This was for personal injury or property damage?
Customer: replied 1 year ago.
Personal injury
Expert:  legalgems replied 1 year ago.
Thank you for that; yes, so for personal injury (versus property damage) there is a 2 year statute of limitations. However, the statute can be "tolled" (suspended) for several reasons, such as defendant's absence from the state, the plaintiff is a minor or is incompetent; the plaintiff is in prison, in the military, etc. These are all statutory tolling issues set forth at CCP 351 et seq.But there is a different type of tolling-based on equitable considerations. This means the court will go outside of statutory concerns and apply the doctrines of "fairness" and "justice" to ensure that equity is done. There are several cases that discuss this, specifically to insurance:for example, Bollinger v. National fire Insurance (1944) 25 C2d 399 - where the court found that equitable tolling is appropriate when an insurance company interfered with the plaintiff's filing of the claim. Also, Vu v. Prudential (2001) 26 Cal 4th 1142, allowed for equitable tolling if an insurance company fails to disclosre or notify a non represented plaintiff of the statute of limitations. Another similar case is Gould & Bowers v. Associated International Insurance Co. 1o7 CA 4th 1260; Also, the parties may execute a tolling agreement, basically saying they will suspend the statute of limitations for a specified time so negotiations can continue.Since the tolling of statute of limitations is confusing and needs to be approved by the judge, it would be best to hire an attorney to prepare a memorandum of points and authorities, citing the cases that support the equitable tolling of the statute under circumstances such as those presented. Thank you for using Just Answer.I hope the information I provided is useful. If you need further clarification please post here and I will reply as soon as I see it; otherwise, Kindly-Rate Positively-This does Not result in additional charges to the customer and allows the site to credit me for assisting you today.Thank you and take care!No attorney client relationship is created as this is general legal information, not advice; and a personal attorney should be hired if one wishes specific legal advice for their personal situation.
Expert:  legalgems replied 1 year ago.
Thank you for using Just Answer.I hope the information provided was useful.Here is a link to the bar association's legal referral site: you have further questions please post here; otherwise kindly --- Rate Positively--- so the site credits me for assisting you.Thank you and take care!