The Personal Injury Attorney Law Firm – (Wrongful Death) Statute of Limitations
Losing a loved one is devastating for any person. It is even worse when the person died out of negligence or because of the actions of another person. The law understands the pain a family goes through when their loved one is wrongfully killed and allows them to get compensated for their death. Although no amount of money can replace your loved one, the monetary compensation goes a long way in helping meet the expenses associated with the death and the lost income from them.
Unfortunately, there is a time limit to when you can seek compensation for the wrongful death of your loved one. This is known as the statute of limitations, and each state has its laws regarding it, and if this time lapses, you risk losing compensation for their death. Fortunately, we the help of an experienced lawyer, you can file for damages before the expiry of the time or find a way to extend the period. At The Personal Injury Attorney Law Firm, we are experienced in assisting our clients in receiving compensation for the wrongful loss of their loved one.
California’s Statute of Limitation for Wrongful Death
Understanding what the stature of limitations means is the first thing towards ensuring rightful compensation. This is a rule by the court requiring the filing of lawsuits within a specific time frame. If you fail to have your case filed within this time, it will not be allowed in court later, and it will get dismissed.
In the case of wrongful death, California allows the family to file a claim in 2 years, from when the person dies. However, an exception to this time may occur due to the discovery rule. This happens when the reason for the death is not obvious, but it is discovered at a later date. In this case, the family of the deceased is allowed more time to raise a claim for the wrongful death.
If the discovery rule is applicable, the family has 2 years from when the reason for the death is established to file a lawsuit for wrongful death compensation. With an experienced attorney, you will understand more exceptions where discovery rule is concerned that may assist your case.
If the death of your loved one was caused by a government or public entity, the family or estate has six months to file a claim suit. For example, if it is established that your loved one died as a result of an accident whose cause was bad road condition, you must file a claim in six months. If this time lapses, it will be impossible to seek compensation from the government agency responsible for their death. Typically, when the claim is filed, the government agency responds in 45 days to deny or agree to the demand. If they deny it, you will have six months to raise a suit seeking damages from the court.
When a parent dies, and a minor has to sue for their wrongful death, the rules are different. In such a case, the minor is given more time but only up to 2 years from when they become 18 years. If the death resulted from medical malpractice, different rules apply irrespective of whether it is personal injury or wrongful death.
If a person’s actions have caused the death of your loved one in California, understanding the limitations in seeking compensation for their wrongful death is critical. Looking through the various laws to find the statute that is correct in your case is challenging. However, to best know what rule applies to you, it is necessary to discuss your matter with an experienced attorney in California.
The Primary Statute of Limitation
There are various types of these limitations, depending on the case. The statute that addresses most wrongful death claims is found under Section 335.1. This statute indicates that an action causing death as a result of an unlawful act or negligence of another person needs to be filed in two years.
For instance, if a victim dies instantly due to a car accident, the family members have 2 years to raise a claim from when the accident occurred. If the accident instead caused the victim to suffer significant brain injuries and he or she was in a coma for a year and died, the counting starts from the date of death. This means the time of the accident will not be taken into consideration, only the date of death, giving the family two years to file their claim.
When death was due to Medical Malpractice
When medical malpractice is the reason for the death, the limitations to when you can file for a claim changes depending on the victim’s age. It is important to note that you can sue for both the medical malpractice that resulted in the death and wrongful death. These claims are different or separate.
If the wrongful death happened to an adult, the limit of when to sue is the earliest of:
- 3 years from when the injury occurred or
- A year after discovering the damage or when the injury should have been discovered.
If the wrongful death victim was below 18 years, the limitation to sue is the latest of:
- 3 years after the supposed wrongful deed or
- On the eighth birthday of the minor, if they were five years or younger when the injury happened.
In most medical malpractice cases, the date of death is often the same date an injury would occur. In some cases, however, time passes between when a victim dies, and the malpractice happened. With your attorney, you will be able to establish the particular claims to petition for and when to do so.
When the Statute of Limitations Lapses
Sometimes, a wrongful death claim may not be filed within the time limit set by the law. However, there is still hope for a family to get compensated for the death of their loved one. In this case, you have three options that can be used to extend the time to get paid. These options include:
Tolling the statute of limitations – This option focuses on suspending or delaying the period given for one to file a suit for wrongful death. Tolling is more commonly used than any other option, and its acceptability depends on the law. The Discovery rule, which will be discussed later in this article, is considered in this case to delay the limitation. Additionally, other situations may allow for tolling to be applicable.
For instance, if the parents died and left minors, the law does not expect them to seek damages while they are still minors. This means a child can file a suit for the wrongful death of his mother many years later because the time starts to count after their eighteenth birthday. Generally, the court considers the benefits in tolling the specific case where the plaintiff can file their claim against any prejudice that the defendant may feel.
Having the court waive the statute – There are cases where the plaintiff may file a petition requesting the court to reject the limitations and allow them to submit their lawsuit. This option is not very common, but it happens from time to time. The court considers the situation and expects it to meet specific criteria for the qualification of waiver. Additionally, the opposing party is permitted to contest the request for a waiver because it is within their legal right. If the court finds that it is in the interest of justice to allow the exemption, then the plaintiff is permitted to file a wrongful death suit.
Having the opposing party waive it – Although this is highly unlikely, sometimes an opposing party may decide to reject the limitations themselves and allow the plaintiff to file a suit for the wrongful death. If the defendant waives the restrictions, the court will allow you to sue the defendants for compensation. However, in most instances, when the defendant waives the limitations, they are willing to compensate for the wrongful death of the victim.
The limit outlined in the statute can lapse due to many reasons. These reasons are why a toll or pause in the law happens. Such a situation would be when the family of the victim may not find out the cause of the victim’s death until a later date.
For instance, John went hiking alone and had not told anyone where he was going. Unfortunately, during his hike, a hidden electric fence electrocutes him to death. John fails to return home, and it is reported to the authorities that he is missing. After a few months, a hunter or hiker discovers a decomposing body and reports it to the police. After forensic testing, it is found to be the body of John, and the cause of his death is established.
The family of John may feel that his death was wrongful and want compensation from the installers of the invisible fence. In this case, the court extends the limitation period. This allows the counting to start from when the cause of death was determined.
Another example when the court can allow an extended period for a family to sue for wrongful death is when initially, there was a mistake in determining the cause of death. For instance, Grace likes to jog each morning. One day, she hits a cracked pavement and trips over it. The fall that follows causes her to die. However, when the coroner is examining her, he mistakenly concludes that a heart disease resulted in her death.
However, with further investigation, the report is changed after discovering the death was due to trauma on the head from hitting the ground. Grace’s family, in this case, may want to sue the government agency responsible for pavement maintenance for the wrongful death of Grace. Because the family had not known what caused her death before, the court will start counting the limitation period from the time of discovery. This brings us to the discovery rule if suing for compensation when a loved one dies out of negligence.
The Discovery Rule
Typically, the limitations period, according to the law, starts to run from when the party suing finds out or should have found out the reason for the victim’s death. A family has a fundamental right to sue for compensation when their loved one dies due to the carelessness of another party. The courts understand this and allow the limitations to start running when the injured person dies. However, if the cause of death is not immediately established and gets discovered later, the limitation period starts running them.
This is what is referred to as the discovery rule. The limitation period, according to the law, starts running when the discovery is made of the cause of death. This rule also applies to establish if the deceased knew or needed to have known what caused their illness before their death. This is important in determining if the limitation period should have started running before the death of the victim.
Considerations in Wrongful Death Suits
When a lawsuit on wrongful death arises from a personal injury claim, it can get challenged due to the statute of limitations. This happens if the victim had not initiated a request for the injuries before their death. Or within the allowed time by the law to seek damages for the injury. Before deciding on the case, the court considers the circumstances of the case and determines when the limitation period starts to count.
Special considerations are also made where the victim died due to a product malfunction. This means, if the wrongful death was related to product liability, the limitation period runs from the date of the victim’s death. This is irrespective of whether the family suing for damages knew or did not of the cause of death. In this case, the discovery rule does not apply.
Who Can Sue for Wrongful Death
Not everyone can bring a wrongful death suit and get damages. According to the law, only the following persons can sue for the wrongful death of a loved one. They include:
- The living spouse,
- A domestic partner,
- Surviving children,
- Grandchildren in the case where the children of the deceased victim are also dead,
- Stepchildren if they depended on the deceased person financially up to 50%
- Any person entitled to the property of the deceased based on the intestate succession laws of California.
If you are entitled to seek damages for the wrongful death of a loved one, you can only do so if the death resulted from gross negligence, negligence, intentional wrongdoing, or recklessness. Some of the wrongful acts resulting in the death are:
- Accidents on the road, involving vehicles or being hit by a driver under the influence of alcohol or drugs,
- When the victim was a pedestrian hit by a car,
- When the victim slipped and fell,
- A drowning accident,
- As a result of getting assaulted or battery,
- When the victim is murdered or is a victim of manslaughter,
- When the victim is elderly and is abused or neglected,
- If the victim is a child subjected to abuse and neglect,
- When the deceased died due to medical malpractice.
Recoverable Damages from a Wrongful Death Suit
When you successfully file for a wrongful death suit within a limited time, according to the law, you will receive both economic and non-economic damages. The law allows you to receive compensation for the support you could have received from the deceased if they never died. While awarding damages, the court considers the shorter period of:
- The life expectancy of the dead at the time of their death, or
- Your life expectancy as the plaintiff at the time you lost your loved one.
The economic damages you stand to receive include:
- The cost of burial and funeral,
- The financial or monetary support you would have received from the deceased victim if they were alive,
- The lost benefits or gifts due to the victim’s death, among other damages.
The non-economic damages you stand to gain include:
- Value of the lost companionship,
- The protection and affection lost,
- Lost sexual relations, among other costs.
The amount a jury awards for non-economic damages is not fixed. However, the decision is often made based on the evidence provided and what they feel is reasonable under the circumstances.
Survival Lawsuit in Wrongful Death
A survival lawsuit is similar to a wrongful death suit but different as well. In a wrongful death suit, the family of the deceased gets compensated for the death of their loved one. On the other hand, the estate of the decedent gets paid for the damages incurred before their death.
Typically, when death occurs due to recklessness or negligence of another. The perpetrator of the offense is faced with either or both of the following lawsuits:
- Wrongful death suit compensating the surviving family for the losses suffered
- A survival lawsuit for paying the estate of the deceased victim of the losses it experienced before the death.
Not everyone can petition for a survival lawsuit. Both wrongful death and survival suits are designed to compensate different parties for the losses of wrongful death.
This means the family can sue for the wrongful death of their loved one while the survival suit is initiated to compensate the estate of the deceased person. In this case, two lawsuits seeking damages for the wrongful death of one person can be filed.
A survival suit, according to the law, is brought by a representative of the deceased. A wrongful death claim, on the other hand, is by the surviving family. A representative can also be a family member, a friend, a lawyer, or any person named in the will or trust by the victim.
When a survival suit is filed, the petitioner seeks to recover various types of damages. The law only allows for the recovery of economic damages but not non-economic ones. These are typically the losses the victim suffered after they sustained injuries from the reckless act resulting in their death.
This means, if there were losses the victim suffered before their death, the estate gets compensated for them. However, if the wrongful act resulted in instant death to the victim, a survival suit is not applicable. The damages recoverable from a survival suit include:
- Medical expenses incurred by the victim before their death,
- Any damages to their property during the reckless act,
- Wages lost by the deceased before their death after the careless act.
If you are the petitioner in a survival suit, discussing the case with an experienced attorney helps in ensuring the estate receives the rightful compensation for the losses. Your lawyer will also help you know what damages are compensable in this case and the ones that are not. For instance, you will not seek pain and suffering damages in a survival suit.
Statute of Limitations for a Survival Suit
Like in the case of wrongful death, when petitioning the court for damages suffered before their death, you are also guided by a limitation of time. The time is, however, counted differently from that in a wrongful death suit.
The limitation of time, in this case, can begin from the time the reckless or wrongful act occurred. You can petition for a survival suit before or after the following has happened:
- Two years post the unlawful act date, or
- 6 months after the death of the victim.
In cases where the reckless actions resulted in death almost immediately, the limitation in time for when a survival suit and a wrongful death petition is filed is about the same. At other times, one suit may be earlier than the other.
For instance, Peter is placed in a nursing home by his family due to his old age and being disabled; he requires constant care. A nurse decides they are tired of the regular cleaning and turning, resulting in Peter developing bedsores that refuse to heal. When the sores get infected, they result in Peter’s death.
A report by the medical examiner establishes the neglect began much earlier, and Peter died 18 months later. In this case, if you are the representative of his estate, you have six months to bring up a survival suit on his behalf. On the other hand, his family has two years from the time he died to sue for wrongful death.
Survivor action or lawsuit is the single way punitive damages for wrongful death are recovered. This makes it critical for you to ensure the suit is filed within the time stipulated by the law to avoid missing on the compensation. With an experienced attorney, he or she can ensure you submit the suit on time and receive the rightful damages.
Find a Lawyer Near Me
When the reckless and negligent actions of another person or entity cause the death of a loved one, the pain can be devastating. You stand to lose so much with their death making it fair to get compensated for the losses you suffer. However, if you fail to seek these damages on time, you risk losing the chance to get paid for the losses. Experienced lawyers from The Personal Injury Attorney Law Firm will advise you on the right time to seek damages and avoid further losses. Call us at 619-625-8707 to discuss your case in detail.