For every lawsuit, the claimant should file a lawsuit or a claim within a set period. This period is provided in the statute of limitations. Statute of limitations may vary depending on the state and the type of the lawsuit. Once the period provided for in the statute of limitations expires, the court no longer has the mandate and the jurisdiction to punish the defendants and provide compensation to the victims. Upon the expiration of the time in the statute of limitations, you may no longer be able to file a wrongful death claim for your loved one unless under some special circumstances. If you are filing a wrongful death claim, Jacksonville Personal Injury Attorney is here to advise you on the applicable timeline from the statute of limitations.
Wrongful Death under Florida Law
A wrongful death claim refers to a civil lawsuit brought to court when a wrongful action or negligence of one party leads to the death of another person. According to the Florida statutes section 768.19, when a person's death occurs due to the negligence or wrongful action of another person, the estate of the deceased person may bring a lawsuit against the defendant. The lawsuit helps the surviving relatives of the deceased person to get a remedy for the death of their loved one and for the losses that come with death.
According to Florida law, the personal representative of the estate of the deceased person has the mandate to file a wrongful death claim. In most cases, the representative is identified in the deceased person's will or estate plan. It is common for a person to die without leaving a will or an estate plan. In this case, the court has to appoint the personal representative of the estate of the deceased. The personal representative files a wrongful death claim on behalf of a deceased person's estate and any surviving dependents of the deceased.
Some of the eligible family members who may benefit from a wrongful death claim include the spouse, the children, and the parents of the deceased. Any blood relative or adoptive sibling of the deceased may be eligible for compensation.
If a child is born out of wedlock, the child may be able to seek compensation for wrongful death if the child's mother dies. However, if the father of the child dies, the child may only recover wrongful death benefits if the deceased father recognized the child as his own. The deceased father should also have contributed to the support of the child.
There are several causes of wrongful death. A wrongful death may occur when the victim consumes a defective product and due to mislabeling. Many people die from accidents occurring due to defective machinery. Manufacturers also face charges for wrongful deaths due to failure to offer an express warning to the consumers on the use of various products. The manufacturers must be liable for selling defective products to consumers.
Wrongful deaths also occur due to accidents. Mainly most wrongful deaths result from auto accidents. Auto accidents include bus accidents, car accidents, trucking accidents, boating accidents, and motorcycle accidents, among others. Auto accidents may occur due to the negligence of the driver, mainly if the driver engages in reckless driving or driving under the influence of alcohol. The accidents may also occur due to the carelessness of other parties like other drivers, trucking companies, bus manufacturers, bus operators, and auto maintenance experts. The government may also be to blame if an auto accident occurs due to poor road conditions. The government has to ensure that roads are in good condition.
Wrongful deaths may also occur due to medical malpractice. Medical malpractice occurs when the doctor or medical assistants fail to offer ample care to patients. The physicians may be negligent if they use the wrong medical procedures leading to the death of patients. For instance, a doctor may inject the wrong medicine into a patient leading to death. Medical malpractice cases also revolve around maternity cases where mothers and infants fail to receive adequate care leading to a complicated delivery. Delivery complications may result in the death of the mother, the child, or both.
Statute of Limitations in Florida
In Florida, the period prescribed for filing a wrongful death suit as per the statute of limitations is two years. The two years are applicable from the date of death of the victim. For instance, if your loved one passes on in January 2020 due to the negligence of another person, you have to file a wrongful death claim by January 2022. Failure to file a wrongful death claim within the set deadline may hinder the deceased person's family from ever getting compensation for the death of their loved one.
The general rule in Florida is for claimants to file personal injury lawsuits within four years from the date of the injury. The claimants should also seek compensation for wrongful death within two years from death. However, as in the case of most rules, there may be some exceptions to the statute of limitations rule.
The discovery rule may apply for personal injury cases. Some injuries the victim suffers in an accident may not be immediately apparent. The victim may appear excellent at first only to suffer illness and die later. In most cases of injury, the time in the statute of limitations will only apply after the victim discovers or at the time when the victim should have discovered the injury. Some damages like traumatic brain injury may only show up weeks after suffering the injury.
The discovery rule outlines that if a person's cause of death is not known, the period for recourse may extend. An individual may die under mysterious circumstances only for the cause of death to come out later. In the case of delayed discovery of the cause of death, the time prescribed in the statute of limitations is two years from the date of discovering the cause of death. There are further exceptions to the discovery rule. Your attorney can help you under the additional exceptions of the law.
When filing a wrongful death claim against a public entity like the State of Florida, different periods for recourse may apply. Possible wrongful death claims against the state result from accidental deaths occurring due to poor road conditions. The government has to maintain roads and ensure that road users are safe.
When a minor is suing for the death of his/her parents, the minor may have to wait until he/she reaches maturity age. Therefore, the period will be two years from when the minor attains 18 years.
A wrongful death may be a derivative action. Derivative means that the claim may be arising from a personal injury action. In this case, the wrongful death claim may be barred by the statute of limitations if the plaintiff had no claim at the time of death. This situation is common if the decedent had failed to bring a personal injury claim within the applicable time frame as provided or in the statute of limitations for personal injury cases.
At times, wrongful death claims based on product liability may be subject to special periods for personal injury action. In cases revolving around product liability, the period may start running from the time of the victim's death. This case applies regardless of the knowledge of the survivors on the cause of death of the decedent. The discovery rule may not apply in cases of wrongful death due to product liability.
Tolling of Wrongful Death Claims
You may get an exemption from the time provided for in the statute of limitations for wrongful death under certain circumstances. Tolling of the time in the law refers to extending the period within which to file a claim. The deadline for filing a claim may continue if the defendant or the party against which you are submitting the claim is not within the state. Negotiations for wrongful death settlements involve both the defendant and the claimant. Therefore, if the defendant is not in the state, it may not be viable to file a claim. In this case, an extension of the period may apply.
An extension of the statute of limitations’ time may also apply if the defendant goes into hiding. The dependents of the deceased may not be able to seek compensation if it is impossible to trace the defendant. In an attempt to avoid liability, the defendant may be using a different name without the knowledge of the defendant. If the defendant is using a different name, it can be challenging to serve the process.
When the dependents are minors below the age of 18 years, the court may extend the time until the dependents are of age. The claimant may benefit from the tolling of the period in the statute in other situations. However, it can be complicated to figure out how long you have to file a wrongful death claim. It is advisable to consult with an attorney as soon as possible.
Notifying the Defendant
The party filing a wrongful death lawsuit has to notify the defendant that he/she will face charges for his/her negligence that led to the death of another person. The process of informing the defendant is known as the service of process. The State of Florida has in place some rules to ensure the consistent serving of the process. The law ensures that there is a protection of the rights of both the defendant and the claimant. A personal injury attorney will advise you to ensure that the lawsuit is well initiated.
When a victim sustains very severe injuries, the victim may die hours or days later. The victim may still die even if he/she receives emergency medical attention. The family of the deceased person should understand the laws that govern the process of seeking compensation for wrongful death. The two-year period in the statute of limitations for wrongful deaths applies to deaths resulting from accidents and deaths resulting from medical malpractice.
In the case of medical malpractice fatalities, the two-year limit is not applicable from the date of death. Instead, the time begins from the date when the investigators discover the cause of the death of the victim. Survivors cannot file a wrongful death claim unless they are aware that medical malpractice occurred and led to the death of their loved one. For you to identify a case of medical malpractice, procedures like post-mortem may be necessary to reveal the cause of death.
Even if a significant time has passed since you lost your loved one, you do not have to give up. An experienced attorney can help to evaluate your case and determine the necessary steps for your civil lawsuit. Even if you seem to have limited time, you may still have a legal recourse to navigate the statute of limitations.
A Claim Against the State
When you are filing a wrongful death claim against the state, different times apply. Typically, actions against states or other government entities have different times in which an individual can institute legal action. For a claim against the government of a subdivision of the government, you have to file the claim within four years from the time the claim accrues. However, certain exceptions, limitations, and requirements may limit the period further.
To understand the applicable period in the statute while filing a claim against the government, you should seek the counsel of an attorney. An attorney can advise you on whether your case falls within the applicable deadlines and periods.
What if the Defendant Dies?
Anything can happen in the course of filing a personal injury lawsuit. For instance, the defendant may die before you get compensation for the death of your loved one. What happens if the defendant dies before the deceased's dependents receive compensation? You should not give up on filing the claim even if the wrongdoer dies. Even when the wrongdoer dies, you may still be able to seek compensation.
If a defendant dies while the case is still pending, the claimant should file a motion in court to substitute the personal representative of the estate of a deceased defendant within 90 days. The 90 days are applicable from the time the death is suggested on record. The personal representative has an obligation to file a suggestion for death. The plaintiff then has to file a motion seeking substitution the personal representative of the deceased defendant's estate for the original defendant. Therefore, instead of seeking compensation from the deceased wrongdoer, you will seek compensation from his/her representative.
This rule of substituting a deceased defendant seems harsh and unforgiving. However, the rule is essential in ensuring that the dependents of the victim receive compensation. Your attorney will have to comply with this rule if the defendant dies when your claim is pending. If your attorney fails to comply, you may end up missing the compensation.
If the plaintiff's attorney fails to file a motion to substitute parties within the applicable 90 days, the insurance company for the original wrongdoer may act. The insurance company may file a motion for summary judgment. This motion may lead to a permanent dismissal of the case if the court grants the motion. If you file a complaint against the insurance company of the original wrongdoer, the court may maintain that your claim against the insurance company is permanently barred. The barring is due to the failure to file a motion to substitute the defendant.
Importance of the Statute of Limitations
The legislature finds it essential to have a statute of limitations. This statute ensures that there is fairness to all the parties involved in a case. If too much time passes before filing a lawsuit, evidence disappears. The witnesses may also move to other locations, and their recollection may fade. According to the law, the defendant should not be exposed for long just because the plaintiff fails to bring an action forward within the set period.
Wrongful Death due to Homicide
The Jeffrey Klee Memorial Act outlines that there is no time limit within which to file a wrongful death claim if the death occurred due to homicide. The Florida Legislature created this exception in 2010. The Senate and House Bills SB 92 and HB1 were responsible for the creation of this act.
According to the act, homicide investigations may take many years to conclude. It may take intense and lengthy investigations to identify the defendant or defendants responsible for the homicide. The plaintiff cannot file a wrongful death claim if the defendant is missing.
The House and the Legislature liberally extended the timeframe within which a survivor of an estate can file a wrongful death claim seeking compensation for the loss of a loved one. In non-homicide cases, the time limit within which to file a claim is narrow and limited.
The actual filing of a lawsuit in a court of competent jurisdiction triggers the statute of limitations. However, the plaintiff should not act with haste while trying to file a case within the applicable period in the statute of limitations. With the help of an attorney, it is advisable to take ample time to investigate and collect evidence relating to the case.
Statute of Repose
In some cases, the statute of repose may apply. This statute prohibits the filing of a wrongful death claim based on product liability if the product has reached a particular age. This statute applies when death results from defective products. If the product has been off the market for an extended duration, it may not be possible to file a wrongful death claim based on defective products.
Expiration of the Statute of Limitations
The period prescribed in the statute of limitations may expire if the plaintiff spends too much time gathering evidence, and he/she fails to commence the lawsuit. The period may also expire if the claimant is not aware that the limitation applies to his/her case. You should not give up on a wrongful death claim even if the period expires. If you miss the set deadline for filing a wrongful death claim, you have three options. The first option entails tolling the time as provided for in the statute. You may request the court to waive the period in the statute. You may also have the opposing party waive the use of the statute of limitations.
With the help of an attorney, the plaintiff may request the court to waive the use of the statute of limitations. For the court to grant this request, the situation must be unique and specific to merit a waiver by the court. It is not common for the court to waive a period in the statute of limitations.
You may send a waiver request to the opposing party through your attorney. However, it is highly unlikely for the opposing party to welcome a request to waive the deadline for filing a lawsuit. In most cases, the opposing party will decline the request.
Tolling or delaying the period in the statute of limitations is the typical procedure. The applicable state law and the cause of wrongful death will determine whether tolling is acceptable. The court always weighs the positive benefits of tolling. The interest of the court is to allow the plaintiff to bring his/her claim against the defendant.
The court may toll the time if it is evident that someone concealed critical information about the cause of death. The clock will only start at the time the court or investigators discover new information on the cause of death.
Role of the Claimant
In all cases and irrespective of the cause of death, it is crucial to be vigilant in the preparation of a wrongful death claim. To prove the liability of the defendant, the plaintiff should investigate all the circumstances surrounding a wrongful death. Acting ensures that there is ample time to handle the funeral arrangements and mourn your loved one.
Even after the funeral, you will still have many things to handle. You have to adjust and learn to live without your loved one. However, despite all the responsibilities and the adjustments, a time comes when you have to pose and consider what killed your loved one. This consideration will help you know if you have a right to move ahead with a wrongful death claim.
Contact a Personal Injury Attorney Near Me
It can be stressful to deal with the pain that comes with a wrongful death claim. However, with the assistance of an experienced attorney, the process becomes more comfortable to handle. Jacksonville Personal Injury Attorney can help you understand the applicable time to seek recourse for your case as per the statute of limitations. This understanding will help you claim within the set deadline. If you are filing a wrongful death claim in Jacksonville, contact us at 904-800-7557 and speak to one of our experienced attorneys.
Hi Phil, I fully get it now. I will ensure that next time i follow the guidelines you have illustrated. Thanks for that correction
