WLF Wrongful Death Attorneys Explain
Every civil lawsuit has a statute of limitations. This is the time period within which a personal injury claim or lawsuit must be filed. The time period generally begins with the date the injury or death occurred and lasts until a specified date. In California, the statute of limitations for most wrongful death cases is two years from the date of the victim’s death.
The Discovery Rule
If your loved one was killed as a result of the deliberate or negligent actions of another individual or entity in California, then you must file a wrongful death claim within two years. What happens if you fail to file a claim within two years? You may lose your right to pursue compensation altogether.
However, there is an exception known as the discovery rule that may give you more time to file your wrongful death claim. This rule states that the statute of limitations begins from the date the cause of an illness or injury was discovered or reasonably should have been discovered, which means that you can file a claim (or a lawsuit) even after the statute of limitations is thought to have expired.
But you should be careful, because the discovery rule works both in favor of and against the plaintiff.
Quite often, the discovery rule works in favor of the plaintiff. For example, if the cause of the victim’s death was discovered one year after his or her death, then the statute of limitations begins from that date and not from the date of his or her death. This means that the statute of limitations will not run out until three years after the death of the victim, giving the plaintiff one more year to file a claim or lawsuit. In this case, the discovery rule clearly works in the plaintiff’s favor.
But sometimes, the discovery rule works against the plaintiff. For example, if a victim’s death was caused by an injury or illness that was discovered a year earlier, then the statute of limitations is considered to have begun on the day the injury or illness was diagnosed. This means the plaintiff will have only one year after the victim’s death to file a claim or lawsuit. In this case, the discovery rule clearly works against the plaintiff.
What happens if the injury that led to death was discovered and diagnosed four years before the victim’s death? In this case, the statute of limitations runs out before his or her death. However, it can be reasonably assumed that the decedent had already initiated and won a personal injury claim before his or her death.
In some states, wrongful deaths caused by product liability are subject to special limitations which state that the statute of limitations begins on the date of the victim’s death regardless of when the injury or illness arising from the use of the defective product was discovered. Some states also have a provision called ‘statute of repose’, which prohibits claims based on product liability if the product in question has reached a certain age.
It Is Possible to Delay or Suspend the Statute of Limitations
If you have run out of time on your statute of limitations, you can try to have the time limit extended in three ways: tolling the statute of limitations, having it waived by the court, and having it waived by the defendant.
You may request the statute of limitations to be tolled (delayed or suspended) in certain situations (i.e. you’re currently in jail or suffering mental health issues). This is quite common. You may request the court to waive the statute of limitations, but the court will grant the waiver only if you can meet certain conditions.
If you have lost a loved one through the wrongful actions of someone else, then consult with wrongful death attorneys before the statute of limitations expires.