The Statute of Limitations in a Wrongful Death Case
The legal system sets strict deadlines for claimants to file their cases in court to protect defendants from unfairness and prejudice. These deadlines are different for different kinds of cases and are called statutes of limitations. If a case does not resolve beforehand, it is critical that the plaintiff file a lawsuit before the deadline expires or they will likely lose the right to file the claim they are seeking compensation for.
Statutes of limitations are a matter of state law. Each state will have its own rules for when a plaintiff must file a case. Wrongful death cases may have different statutes of limitations, so consult your lawyer to ensure you don’t miss any filing deadlines.
The Time Limit Could Differ Based on How the Person Died
In California, the statute of limitations for wrongful death cases is generally two years from the date when the person died. The clock will usually begin to run at the time of death, although there are exceptions that we discuss below. There is a different statute of limitations for medical malpractice cases, giving the family three years from the date of the malpractice (of one year from the date the plaintiff should have been aware of the malpractice) to file a lawsuit. There are also special timelines, as short as six months, when the responsible party is a public or government agency.
When the Statute of Limitations Begins in Wrongful Death Cases
Note that the time clock begins to run at the time of death rather than the time of the injury. This is important when the accident victim did not die immediately. For example, they could have been in a coma for months after a car accident. Alternatively, they could have developed cancer after taking a medication. In any event, wrongful death lawsuits cannot begin until the victim dies.
In most cases the date the statute of limitations expires is evident. Sometimes, however, identifying the correct expiration date can be more complicated.
Here are some ways that surviving family members may be able to file a claim after the statute of limitations expires:
The family members filing the claims were disabled or incompetent when the statute expired.
The defendant committed fraud that kept the family from learning that there may have been a possible lawsuit.
The defendant has taken some steps to interfere with or keep the plaintiff from filing a lawsuit.
The family members filing the claims were in the military during the period the statute of limitations was running.
Another important exception is when there is a minor child who has a cause of action for their parent’s death. In this case, the child has until two years after they turn 18 to file a wrongful death lawsuit. This is because the right to sue for wrongful death belongs to the particular family members, and a child is not able to file a lawsuit on their own before they become an adult.
Defendants May Try to Challenge Claims When Doubt Exists
Statutes of limitations are often an issue in toxic torts and product liability wrongful death cases. People may die from exposure to a dangerous substance over an extended period of time. The defendant may try to argue that the date of discovery was before the person’s death, and that is when they should have filed a lawsuit.
The same thing happens when someone becomes ill due to a medical product. In that case, the defendant may try to argue that the statute of limitations began to run when they realized when they were sick. This is why you should not wait until after death to do something about it in these cases. When in doubt, you should speak with a lawyer sooner rather than later.
Plaintiffs Should Never Miss the Statute of Limitations
Missing this deadline could have dThe teamatic consequences for a plaintiff. The law is very firm, and cases filed after the statute of limitations has expired will be dismissed unless the plaintiff shows that one of a handful of very narrow exceptions applies. Even missing this deadline by one day could completely eliminate your right to compensation. No matter how harsh it may seem, this is the law, and courts apply it with rare exception. Courts will not generally accept excuses. Instead, they will want to know whether anyone kept you from filing a lawsuit as opposed to mistakes that the plaintiff made.
This is why you must contact an attorney as soon as you believe that someone else was responsible for the injuries or death. If you file a personal injury lawsuit before they die, you can later amend the case into a wrongful death lawsuit.
Your attorney should immediately begin working on your case, keeping you from losing valuable time. Even if your case may settle in the future, often it is preferable to file the lawsuit to start the case. Filing a claim with the insurance company is not enough to meet your obligation to file the lawsuit in time.
It takes time to investigate these cases. If you are filing a lawsuit, the legal complaint would need to be substantial enough to survive if the defendant files a motion for dismissal. You may also want to try to negotiate a settlement with the insurance company without having to file a lawsuit.
It often takes time to reach a settlement with the insurance company, but you do not want to wait so long that you lose the right to sue. Two years can seem like a long time, but it is not as long as it seems in the legal system. It is better to act sooner rather than later to not risk your to pursue a case when someone else’s negligence caused your loved one’s death.
Robert Bohn, Jr.
For more than 40 years, the lawyers at Robert Bohn, Jr. has dedicated their practices to personal injury law, representing people who have been injured or damaged due to the negligence or carelessness of others. For most people, handling a personal injury claim can be complicated and stressful.