It is never an easy experience to lose a loved one. The
experience can be even more painful if it is a “wrongful death” caused by
someone else’s negligence.
Simply stated, a statute of limitations spells out the
period of time during which legal action can be taken.
In most wrongful death cases a the plaintiffs have a two year statute of limitations. Essentially, that means that the claim must be resolved within that two year period from the time of death OR a law suit must be filed within that two year period, since filing a law suit will extend the deadline further.
Exceptions to the 2 year statute of limitations
There are, however, exceptions to the two year statute of limitations:
-When the plaintiff is a minor child
The wrongful death claim of a minor child can not expire until the child is of legal age to pursue such a claim. The two year statute of limitations therefore does not start to count down until the child's 18th birthday. For example, if a 15-year-old child lost their father in a work-related accident, that child's claim would be extended until two years after they are of legal age (their 20th birthday). A minor child is not required to wait until they turn 18 to pursue a wrongful death claim. A parent or guardian can pursue the claim on behalf of the minor child and this is usually a better idea than waiting because the evidence necessary to win a wrongful death case will usually vanish long before the child becomes of legal age. When a parent or guardian pursues a wrongful death case on behalf of a minor child, the court will appoint an ad litem, a non-biased, third-party attorney, who will review the terms of the settlement or jury verdict to determine that the resolution was fair and in the best interest of the child. This keeps family members and other parties from helping themselves to the child's claim. Once the case is resolved, the money is put into the court's registry and is made available for the child when they come of legal age.
-When the exact date of death or whereabouts of the decedent were unknown
In some situations the family of the deceased do not know with certainty that their loved one is dead or the specifics of the death is ambiguous in some fashion. As a result, the statute of limitations can be extended. For example, our firm is litigating a case against an establishment for their role in the death of a young woman. For several years the young woman was simply thought to be missing until her murderer ultimately confessed. Although the confession came more than two years after the woman actually died, the family was able to pursue a wrongful death claim against the defendants because they did not discover that the death had occurred until after the statute expired.
-When the defendants or their negligence were unknown
Wrongful death cases in Texas are subject to the "discovery rule" which states that the two years does not begin to run until the time that a reasonably prudent person would have known that they had a cause of action. A perfect example to illustrate this would be a pharmaceutical case. Imagine that a man takes a pharmaceutical drug and dies due to complications from taking that drug. ten years after his death it is determined that the drug was defective and that the he died as a result of this defect. The decedent's widow would more than likely be able to file a claim even though the standard two year window had expired. The idea behind this is that the plaintiff would did not know that they had a case until years later which would therefore extend the statute of limitations.
-Fraud
In cases where the defendant deliberately concealed their involvement or culpability in a death, the statute may be extended to allow the family of the deceased to pursue civil action against said defendant.
-Mentally of physical incapacity
If a plaintiff has suffered some physical or mental incapacities that keep them from responding within the standard two year statute of limitations, the statute may be extended to accommodate. For example, if a man and his wife are involved in a car accident and the man dies but the wife goes into a coma for three years, her statute of limitations would likely be extended do to the fact that she was mentally or physically incapacitated and was unable to pursue a wrongful death claim on behalf of her husband.
Wrongful death cases should not be handled by inexperienced law firms. The
Dallas wrongful death lawyers of Grossman Law Offices have 20 years of experience in successfully litigating wrongful death claims and we can help you with your wrongful death claim as well.
Contact Michael Grossman at 888-436-0288 for a free consultation.
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How long do I have to file a wrongful death claim?