Losing a loved one is devastating for any person. The pain is worse if the person died because of someone else’s negligence or wrongful actions. The law understands the pain you go through and allows you to pursue compensation for your loved one’s death. Although no amount of money could replace your loved one, monetary compensation goes a long way in helping you meet the expenses and recover lost income after their death.
There is a time limit when you can seek compensation for the wrongful death of your loved one, known as the statute of limitations. Like other states, California has its statute of limitations laws, and if this time lapses, you risk losing compensation for their death. Fortunately, you can file for damages before the expiry of the time or find a way to extend the period with the help of an experienced lawyer. At The Personal Injury Attorney Law Firm, we are experienced in assisting our clients in receiving compensation for their loved one’s wrongful death.
California’s Statute of Limitations for Wrongful Death
Understanding the meaning of the statute of limitations is paramount when seeking compensation. The court requires the filing of lawsuits within a specific time frame. If you fail to file your case within this time, the court cannot order the accused to compensate you. California Code of Civil Procedure section 335.1 offers you two years, beginning from the underlying incident or accident date to file a claim seeking compensation for the death of an individual caused by someone else’s negligence or wrongful act.
For instance, if a victim dies in a car accident, the family members have two years to raise a claim from when the accident occurred. If the accident instead caused the victim to suffer significant brain injuries and was in a coma for a year and died, the counting starts from the date of death. This means the time of the accident will not be considered, only the date of death, giving the family two years to file their claim.
However, an exception to this time could occur due to the discovery rule. Statute of limitations’ exception happens when the cause of death is discovered late. In this case, you are allowed more time to file a claim for the wrongful death. Per the discovery rule, you have two years from when the death cause is established to seek compensation for wrongful death. With an experienced attorney, you learn more exceptions where the discovery rule is applicable.
If a government or public entity caused your loved one’s death, the deceased family or estate has six months to file a claim. For example, if your loved one died in a road accident due to bad road conditions, you must file a claim in six months. Since poor road condition was the death cause, your lawyer could help hold the government liable. If this time lapses before you file a lawsuit, it is impossible to seek compensation from the at-fault government agency. Typically, when you file the claim, the government agency should respond in 45 days to deny or accept. After the agency denies the claim, you have six months to file a lawsuit seeking damage.
The statute of limitations rule is different when a minor’s parent dies. Since a minor cannot file a lawsuit, the law allows them to seek compensation for their parent’s wrongful death within two years after turning 18 years. If medical malpractice caused death, different rules apply irrespective of personal injury or wrongful death.
If someone else’s actions cause your loved one’s death, understanding the limitations of seeking compensation is critical. Finding the statute that could apply to your case is challenging. Therefore, it is necessary to discuss your matter with an experienced Californian attorney to determine what rule best fits your case.
Statute of Limitations for Death Caused by Medical Malpractice
When medical malpractice causes your relative’s death, the allowed statute of limitations depends on the victim’s age. If the wrongful death happened to an adult, the limit of when to sue is the earliest of:
- Three years from when the injury occurred or
- A year after discovering the damage or when the injury should have been discovered.
If the wrongful death victim was below 18 years, the limitation to sue is the latest of:
- Three years after the supposed wrongful deed or
- On the eighth birthday of the minor, if they were five years or younger when the injury happened.
In many medical malpractice cases, the date of death is the same date an injury occurs. In other cases, time passes between when the death and malpractice happened. With your attorney, you could establish the particular claims to file.
Legal Options After the Statute of Limitations Lapses
Sometimes, a wrongful death claim may not be filed within the time limit set by the law. However, there is still hope for a family to receive compensation for the death of their loved one. In this case, you have three options that can be used to extend the allowed. These options include:
Tolling the statute of limitations.
This option focuses on suspending or delaying the period given to file a lawsuit for wrongful death. Tolling is used more than other options, and its acceptability depends on the law. The Discovery rule is considered in this case to delay the limitation. Other situations could allow for tolling to be applicable.
For instance, if the parents died and left minors, the law would not allow them to seek damages until they reached 18 years. This means a child could file a lawsuit for the parent’s wrongful death many years later because the statute of limitations starts counting down after their eighteenth birthday. Generally, the court considers the benefits in tolling the specific case where the plaintiff can file their claim against any prejudice that the defendant may feel.
Having the court waive the statute. There are cases where the plaintiff may file a petition requesting the court to reject the limitations and allow them to submit their lawsuit. Even though not common, this could happen from time to time. The court considers the circumstances and needs them to meet specific criteria for the waiver qualification. Additionally, the opposing party could challenge the waiver request because it is within their legal rights. If the court finds that it is in the interest of justice to allow the exemption, the plaintiff can file a wrongful death suit.
Having the opposing party waive the statute. Although highly unlikely, an opposing party could reject the limitations and allow the plaintiff to file a wrongful death lawsuit. If the defendant waives the restrictions, the court allows you to sue the defendants for compensation. In instances where the defendant waives the limitations, they are willing to compensate for the victim’s wrongful death.
The limit outlined in the statute can lapse due to many reasons. These reasons are why a toll or pause in the law happens. Such a situation would be when the family of the victim may not discover the cause of the victim’s death until a later date.
For instance, John went hiking alone and had not told anyone where he was going. Unfortunately, during his hike, a hidden electric fence electrocutes him to death. John fails to return home, and it is reported to the authorities that he is missing. A few months later, a hunter or hiker discovers a decomposing body and reports it to the police. After forensic testing, authorities establish that the decomposing body was John’s, and the cause of his death.
John’s family could feel that his death was wrongful and seek compensation from the invisible fence installers. In this case, the court extends the limitation period and allows the counting to start from when the cause of death was determined.
Another example when the court could allow an extended period for a family to sue for wrongful death is when initially, there was a mistake in determining the cause of death. For instance, Grace likes to jog each morning. One day, she hits a cracked pavement, trips over, and hits her head on the ground causing her death. When the coroner is examining her, he mistakenly concludes that a heart disease resulted in her death.
With further investigation, it is discovering that the death cause was head trauma from hitting the ground. Grace’s family could sue the government agency responsible for pavement maintenance for Grace’s wrongful death. Because the family did not know the true cause of death, the limitation countdown begins from the date of discovery. This brings us to the discovery rule of suing for compensation when a loved one dies out of negligence.
The Discovery Rule
According to the law, the limitations period starts running from when the suing party discovers the victim’s death cause. A family has the right to sue for compensation if their loved one dies due to another party’s carelessness. However, if the cause of death is not immediately established and gets discovered later, the limitation period starts running then. This is what is referred to as the discovery rule.
Considerations in Wrongful Death Suits
When a lawsuit on wrongful death arises from a personal injury claim, it can be challenged due to the limitations. This happens if the victim had not filed a claim for the injuries before their death or within the time the law allows the seeking of injury damages. Before ruling the case, the court considers the circumstances surrounding the case and determines when the limitation period starts to count.
Special considerations are also made where the victim died due to a product malfunction. This means, if the wrongful death was product liability-related, the limitation period runs from the date of the victim’s death. This is irrespective of whether the family suing for damages knew the cause of death.
Who Can Sue for Wrongful Death
Not everyone can file a wrongful death lawsuit and receive damages. According to California law, the following persons could sue for their loved one’s wrongful death:
- The living spouse
- A domestic partner
- Surviving children
- Grandchildren in instances where the deceased’ children are also dead
- Stepchildren if they depended on the deceased person financially up to 50%
- Any person entitled to the property of the deceased based on the intestate succession laws of California.
If you are entitled to seek damages for the wrongful death of a loved one, you can only do so if the death resulted from gross negligence, negligence, intentional wrongdoing, or recklessness. Some of the wrongful acts that cause deaths are:
- Road accidents involving vehicles or being hit by a motorist driving under the influence
- When the victim was a pedestrian hit by a car
- When the victim slipped and fell
- A drowning accident
- As a result of assault or battery
- When the victim is murdered or is a victim of manslaughter
- When the victim is elderly and is abused or neglected
- If the victim is a child subjected to abuse and neglect
- When the deceased died due to medical malpractice
Recoverable Damages from a Wrongful Death Suit
When you file a wrongful death lawsuit within the allowed time, you could receive economic and non-economic damages. The law allows you to receive compensation for the support you could have received from the deceased if they never died. While awarding damages, the court considers the shorter period of:
- The life expectancy of the dead at the time of their death, or
- Your life expectancy as the plaintiff at the time you lost your loved one
The economic damages you stand to receive include:
- The cost of burial and funeral
- The financial or monetary support you would have received from the deceased victim if they were alive
- The lost benefits or gifts due to the victim’s death, among other damages
The non-economic damages you stand to gain include:
- Value of the lost companionship
- The protection and affection lost
- Lost sexual relations
The amount that a jury awards for non-economic damages is not fixed. However, the decision is often made based on the evidence provided and what they feel is reasonable.
Survival Lawsuit in Wrongful Death
A survival lawsuit has similarities and differences with a wrongful death lawsuit. In a wrongful death suit, the family of the deceased gets compensated for the death of their loved one. On the other hand, the estate of the deceased gets paid for the damages incurred before their death.
Typically, when death occurs due to recklessness or negligence, the perpetrator faces either or both of the following lawsuits:
- A wrongful death lawsuit to compensate the surviving family for the losses suffered
- A survival lawsuit to pay the estate of the deceased for the losses incurred before the death
Not everyone can file a survival lawsuit. Wrongful death and survival suits are designed to compensate different parties for the losses incurred after a wrongful death.
This means the family could sue for the wrongful death of their loved one while the survival suit is initiated to compensate the estate of the deceased person. In this case, two lawsuits seeking damages for the wrongful death of one person can be filed.
Per California law, a representative of the deceased files the survival lawsuit. On the other hand, the surviving family files a wrongful death claim. A representative could be a family member, a friend, a lawyer, or any person the victim named in the will or trust.
When a survival suit is filed, the plaintiff seeks to recover various types of damages. The law only allows for the recovery of economic damages but not non-economic ones. These are typically the losses the victim suffered after sustaining injuries from the reckless act resulting in death.
This means that if there were losses the victim suffered before their death, the estate could get compensated for them. However, if the wrongful act resulted in the victim’s instant death, a survival suit is not applicable. The damages recoverable from a survival lawsuit include:
- Medical expenses the victim incurred before their death
- Any damages to the deceased property during the reckless act
- Wages the deceased lost before their death and after the careless act
If you are the estate representative, discussing the case with an experienced attorney helps to ensure the estate receives the rightful compensation for the losses. Your lawyer could also help you know what damages are compensable. For instance, you cannot seek pain and suffering damages in a survival suit.
Statute of Limitations for a Survival Suit
Like in the case of wrongful death, when filing for damages suffered before the deceased dies, you are also guided by a limitation of time. However, the time is counted differently from that in a wrongful death case.
The statute of limitations begins from the time the reckless or wrongful act occurred. You can file for a survival suit before or after the following happens:
- Two years post the unlawful act date, or
- Six months after the death of the victim
In cases where the reckless actions resulted in death almost immediately, the limitation in time for when a survival suit and a wrongful death petition is filed is about the same. At other times, one suit may be earlier than the other.
For instance, Peter is placed in a nursing home by his family due to his old age and physical disability. The designated nurse gets tired of regular cleaning and turning Peter, and as a result, Peter develops bedsores. When the sores get infected, they result in Peter’s death.
A report by the medical examiner establishes the neglect began much earlier, and Peter died 18 months later. If you are the representative of his estate, you have six months to bring up a survival suit on his behalf. On the other hand, his family has two years from when he died to sue for wrongful death.
Survivor action or lawsuit is the single way punitive damages for wrongful death are recovered. This makes it critical for you to ensure the suit is filed within the time stipulated by the law to avoid missing on the compensation. With help from an experienced attorney, you could file the lawsuit on time and receive the rightful damages.
Find an Experienced Personal Injury Lawyer Near Me
When someone else’s reckless and negligent actions caused your loved one’s death, the pain is devastating. You could lose financial and emotional support after their death; hence, it is important to hire a competent lawyer who will chase after the compensation you deserve. If you fail to file claims on time, you risk losing compensation. At The Personal Injury Attorney Law Firm, we will advise you on the right time to seek damages and avoid further losses. Call us at 619-625-8707 to discuss your case in detail.