The statute of limitations for a wrongful death case varies between states. As a rule of thumb, however, it has to be filed within 2 years of the act that led to the death of the victim. Nevertheless, there are also cases where the statute of limitations was as short as one year. There are also special rules for minors, for those with mental disabilities and for intentional or fraudulent acts.
Date of Discovery
One of the things of importance is the date of discovery of the harm, which is known as the discovery rule. This indicates the date on which the person discovers, or should have discovered, what the cause of the decedent’s death was. In some states, this date is the date of death of the injured party, unless this would be physically impossible. The “discovery rule” can also be used to indicate whether the decedent could or should have been aware of the cause of his or her death before it happened, such as a terminal illness. In certain states, there is an upper limit to the date of discovery. This is generally only in certain cases, however, including product liability, construction, legal malpractice and medical malpractice.
So What Is the Statute of Limitations?
Clearly, there is no obvious answer to this question, as it varies from state to state. Additionally, within each state, there are variations depending on the type of claim. It is very important, therefore, that you familiarize yourself with the rules in your state. You must also remember that the statutes of limitations apply for the state in which the death occurred, which may not be your state of residence or even that of the decedent. The statute of limitations for each state are as follows:
• Alabama – 2 years
• Alaska – 2 years
• Arizon – 2 years
• Arkansas – 3 years
• California – 2 years
• Colorado – 2 years
• Connecticut – 2 years
• Delaware – 2 years
• District of Columbia – 3 years
• Florida – 4 years
• Georgia – 2 years
• Hawaii – 2 years
• Idaho – 2 years
• Illinois – 2 years
• Indiana – 2 years
• Iowa – 2 years
• Kansas – 2 years
• Kentucky – 1 year
• Louisiana – 1 year
• Maine – 6 years
• Maryland – 3 years
• Massachusetts – 3 years
• Michigan – 3 years
• Minnesota – 2 years
• Mississippi – 3 years
• Missouri – 5 years
• Montana – 3 years
• Nebraska – 4 years
• Nevada – 2 years
• New Hampshire – 3 years
• New Jersey – 2 years
• Montana – 3 years
• Nebraska – 4 years
• Nevada – 2 years
• New Hampshire – 3 years
• New Jersey – 2 years
• New Mexico – 3 years
• New York – 3 years
• North Carolina – 3 years
• North Dakota – 2 years
• Ohio – 2 years
• Oklahoma – 2 years
• Oregon – 2 years
• Pennsylvania – 2 years
• Rhode Island – 3 years
• South Carolina – 3 years
• South Dakota – 3 years
• Tennessee – 1 year
• Texas – 2 years
• Utah – 4 years
• Vermont – 3 years
• Virginia – 2 years
• Washington – 3 years
• West Virginia – 2 years
• Wisconsin – 3 years
• Wyoming – 4 years
As you can see, the statute of limitations is always at least one year. The exception, however, is in suing a government agency. Whether you want to sue a city, county or state, different rules are likely to apply and the statute of limitations will sometimes be as short as 30 days. Furthermore, different formats will be required for the notice of claim and the notice of claim period may be shortened. The reality is that government agencies may be completely immune, which demonstrates how important it is to seek prompt legal advice.
A final thing to remember is that the statute of limitations applies to when you file your claim, not how long it takes for the claim to be completed. However, there are usually also digital prosecution statutes. This means that a case must have gone to trial within a set period of time. If it takes longer than this, the case will be dismissed.
At What Point Does the Clock Start Ticking?
Once you know what the statute of limitations is in your case, you need to find out from what date the clock starts to tick. Usually, this is the “date of harm.” This means the date on which the injury occurred. In wrongful death cases, however, this can be slightly different. There may have been a considerable time period of time between an injury and the subsequent death.
But there is a huge exception to this, which is designed to protect plaintiffs if they were in a situation in which they were unaware of being harmed for months or even years. In these cases, the date of discovery will be the date from which point that statute of limitations will start.
This means that there are actually three different times at which the clock could start ticking. These are:
- The earliest point, which is the date on which the harm happened.
- A later point, which is the point at which it should have been reasonably expected for the harm to have been discovered. Hence, if the plaintiff did not actually know about the harm at this point, the judge will feel that he should have.
- The latest point, which is the date on which harm was actually discovered.
Considerations to Take in a Wrongful Death Case
If a judge sees a wrongful death action as a derivative action, which happens when it arises out of personal injury, it could be time barred if it is felt the plaintiff did not bring a personal injury claim to the court within the limitation period that is set for those types of cases.
Another consideration is that if wrongful death was caused by product liability, as a different limitation period is used. Usually, this is always from the date of the death itself, regardless of whether or not the cause of death was known. This means that the discovery rule does not apply.
Finally, you need to know about statutes of repose. This is in place to prohibit a claim under product liability if the product was of a certain age at the time of death. This stops people from making a claim against a product that had already been taken off the market for a long period of time, for instance.
Can You Toll the Statute of Limitations?
If you have run out of time to make a claim, then there are still three last resort options available to you that could help you extend the amount of time you have available. These options are:
- Tolling the statute
- Having the statute waived in court
- Having the statute waived by the defendant
Most plaintiffs will try for the second option. However, courts will only accept this if the suit meets some highly specific criteria. Indeed, it is very uncommon for a court to accept a claim. Similarly, asking the defendant to waive the statute is unlikely to be met with a positive response.
However, tolling the statute of limitations is more common. It is the laws of the state in which the case is being heard that will determine whether or not this request will be accepted in court. Some, for instance, believe that applying the discovery rule is in effect tolling the statute.
One clear example where tolling will almost always be accepted is in the case of minors. If, for instance, their parents died as a result of negligence, but they are still underage, then they will not be able to file a suit until they reach the age of 18 in many states. In these cases, the court may, and is likely to, feel that tolling the statute will be for the benefit of the minors as well as in terms of ensuring the plaintiff is held responsible for negligence.
