Is There A Statute Of Limitations In A Wrongful Death Lawsuit?

Yes, there is a statute of limitations in a wrongful death lawsuit.

That being said, the statute of limitations will be different depending upon where you are required to file your lawsuit.

There are some exceptions to the statute of limitations, as well as options to get some additional time in very specific cases.

Is There A Statute Of Limitations In A Wrongful Death Lawsuit? (EXPLANATION)

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What Is A Statute Of Limitations?

A “statute of limitations” is the legal term.

It establishes the length of time and deadline for filing a claim.

There are time limitations to bring cases in civil court and criminal court, though the legal terms may have different names

The statute of limitations is a very strict deadline, with few exceptions or extensions.

This is in contrast to a “statute of ultimate repose.”

A statute of ultimate repose is an absolute deadline, to which there are no exceptions or extensions.

What Is The Purpose Of A Statute Of Limitations? (Why Is There A Statute Of Limitations?)

There’s a few purposes of a statute of limitations.

First, the statute encourages timely litigation.

As a case gets older, the evidence gets older.

Witnesses move, suffer health problems, and die.

Physical evidence deteriorates or gets lost.

Plaintiffs have the best chance of putting on their best case with fresh evidence, and defendants have the best chance of defending themselves with fresh evidence.

Next, the statute allows people/companies/agencies to have closure.

When someone gets hurt or dies, the defendants will likely consult with attorneys, assemble evidence to support their case in defense, and stand by waiting for the case to be filed.

If there was no statute of limitations, that defendant would have to stand by in perpetuity.

This way, with a deadline, everyone can move on.

This includes the defendants, members of the public, law enforcement officers, doctors, expert witnesses, the court, and even the plaintiffs.

How Long Is The Statute Of Limitations?

Not all statutes of limitations are the same.

These vary depending upon the type of case, as well as the location of the case.

Generally, statutes of limitations are statutes, meaning the deadline is something written into the legislative code.

For example, Florida statutes establish a two year statute of limitations, meaning a plaintiff has two years to file a claim.

In contrast, Oregon statutes establish a three year statute of limitations, meaning a plaintiff has three years to file a claim.

What Happens When The Statute Of Limitations Expires?

If the statute of limitations has passed on a particular claim, it means that unless some exception applies, the claim cannot lawfully be filed.

If a plaintiff were to file a claim after the expiration of the applicable statute of limitations, the court clerks would not catch it or return the complaint unfiled.

Instead, it is up to the defendant to file a motion in response to the complaint (or a defense to the complaint) asking the court to dismiss the case on the grounds that the statute of limitations had expired.

The court would look at the statute as well as the parties evidence and argument for and against the motion to dismiss and then rule.

If the defendant was correct, the case would be dismissed, and in some cases, the defense might receive a judgment for attorneys fees.

When Does The Statute Of Limitations Start To Run?

The statute of limitations period can be complex, and is also state specific, depending upon the text of the statute.

In Oregon, for example, the three year statute of limitations begins to run when the wrongful act causing the death occurred, even if the death didn’t occur until days or weeks or even months later.

Other statutes begin to run when the death occurs.

In other situations, the statute of limitations starts to run when the wrongful act has been “discovered.”

For example, especially in the case of products liability or nursing home negligence, family members won’t realize that their loved one died as the result of someone’s wrongful action to months or even years after the act occurred.

Every statute has a different “discovery statute” so you won’t want to rely upon any information you find on the internet about discovery statutes unless it is specific to your state (or where the lawsuit is to be filed).

Are There Exceptions To The Statute Of Limitations?

Yes, as noted above, there are, depending upon the jurisdiction.

There is the discovery exception, to give family members time to file a case when the bad act could not have been discovered within the original statute of limitations.

The time limits for suing for medical malpractice and for suing government agencies often have different time limitations.

If the wrongful conduct gave rise to a criminal case (such as manslaughter or murder), there may be a mechanism to hold the plaintiffs in a civil case from filing their claim(s) until the conclusion of the criminal case.

If the plaintiff in the wrongful death case is not yet 18 years old at the time of the bad act, there may be a statute which extends the filing period until a certain amount of time after the child reaches 18 years of age.

When To Start Getting Ready To File A Wrongful Death Case To Beat The Statute Of Limitations

It is important early on in the case (as early as possible in fact) to understand the applicable statute of limitations in a potential wrongful death case.

This can and could mean that a wrongful death plaintiff would have to pursue some initial investigation or even hire an attorney early, before the case is fully developed, to protect the case.

Wrongful death cases are technical.

Depending upon who is to be sued, a plaintiff might have to issue notices to the potential defendants within a short period of time after the injury/death to make it possible to sue them later on.

For example, in many states, a plaintiff might have to issue a very specific “tort claim notice” or something of a similar name to public entity /government entities.

The deadline for mailing this notice is very short, and usually close to the time of the injury death, perhaps as short as 30-60 days.

If this deadline is missed, is is possible that the government entity may not be sued later.

This is a good reason to choose your wrongful death attorney as soon as you can.

As for an approaching statute of limitations, if you intend to file, waiting can be the death of a case.

Too many people (attorneys included) make mistakes in filing (naming the wrong defendant, forgetting to name a defendant, failing to serve a defendant, filing in the wrong court, filing in the wrong jurisdiction) that leave no time for correction.

The result is that the claim is dead.

At least, if the lawyer makes the mistake, the client can pursue recovery via the lawyer’s malpractice insurance.

If there’s no lawyer, there’s no insurance.

And no recovery.

We can’t give you legal advice about what to file or when in a wrongful death case, but in general, the best advice for any case involving an approaching statute of limitations is to take action.

Many attorneys will not even consult with a client who has an approaching statute of limitations case because of the fear of making an uncorrectable mistake resulting in a malpractice claim.

Does The Statute Of Limitations Mean That The Case Must Be Finished By A Certain Date?

No.

The statute of limitations only governs when a case must be “initiated” (which usually means filed with the court).

Some wrongful death cases (especially medical negligence and nursing home negligence) can take years to complete from filing to resolution, especially when appeals are involved.

Once the case is appropriately initiated, it takes as long as it takes, and the statute of limitations has no impact on it.

What’s The Best Way To Know For Sure When The Statute Of Limitations Start To Run And Expires?

We strongly recommend consulting with an attorney familiar with wrongful death cases.

If that is not possible, reviewing the state specific laws about the type of claim and statute of limitations is the next best option.

Looking For More Information About Wrongful Death Cases?

We are building up a library of articles intended to assist people facing a wrongful death lawsuit from any angle.

The Wrongful Death Article Library is intended to help make your first conversation with a lawyer, prosecutor, defense attorney, insurance adjuster, or other involved party easier.

You can find the growing Wrongful Death Article Library here.