After the death of a loved one, the living beneficiaries can benefit from the life insurance of the deceased as described under the insurance policy. The process can be complicated at times and it is only through the understanding of the basics and receiving the effort of a wrongful death attorney that can make it easier at times.
To begin with, you should know that every civil action has a statute of limitations. This statute specifies the period when action can be taken about a civil action and when such period elapses the civil action is as good as dead. This kind of ‘limitation period’ is referred to as statutes of limitation. The plaintiff will lose and automatically forfeit his or her legal claim once the statute of limitations for the case is over.
Each state in the US has its statute of limitations laws concerning wrongful death actions. In some states, the period is just one year, many of the states set it as 2 or 3 years, and other states increase it. Before you make a move, find out the statute of limitations about the wrongful death claim in your state. The best way you can do that is by talking to an experienced and qualified personal injury lawyer in Atlanta who is vast in local matters in your area. He or she will have a deep understanding of your jurisdiction which will help to determine if you can still sue in terms of the statute that applies to that case.
Wrongful Death Actions and its ‘Discovery Rule’
The counting of the duration or period for the statute of limitations for wrongful death action starts when the plaintiff discovers or should have discovered the reason for the decedent’s death. Usually, those who are bringing the case to court might have reasons to apply some diligence before they discover the cause of death. The statute of limitations sets a period for such exercise and the limitation begins then. A number of states believe that the right to bring a wrongful death action to court is quite fundamental. For these states, their courts say that the statute of limitations for a case of wrongful death claim starts to count after the death of the injured individual except the application of such period limitations would ruin the cause of action seriously prior to the time it could be revealed. Generally, there is a rule called ‘the discovery rule,’ which can be applied in wrongful death action. It is used to verify if the decedent actually knew or should have the knowledge of the cause of his or her injury or illness before the actual death. This will be used to begin the running of the period of limitation in wrongful death action before the death of the decedent.
The Special Considerations in the Cases of Wrongful Death Actions
At times, a wrongful death claim may be classified as a derivative action. This means it is arising from the personal injury action. The case can be time-barred by the statute of limitations, especially if the defendant did not have a claim at the time of his or her death because the deceased bring a personal injury claim between the duration of limitation for the injury. Also, a number of states subject wrongful death actions which are relying on product liability to certain limitation periods. Such period will start to count on the day of death of the decedent, respective of knowledge or lack of it of the party that is bringing such action pertaining the reason for death. For these states, they don’t use the discovery rule for these kinds of suits.
A number of states also have another rule which is called ‘statutes of repose.’ This discourages claims relating to product liability in a situation where the product is a certain amount of years old. The rules take action when in a case of wrongful death actions stemming up as a result of a defective product, specifically in such cases where the product is no longer in the market for a long period of time.
How to Toll the Period for the Statute of Limitations
Perhaps you have run out of your statute of limitations before you decide you want to take action. Well, there is little hope. There are three last options for you.
- Toll the statute of limitations
- Have it waived by the law court
- Have it waived by the opposing party
As a plaintiff, you can send a request to the court of law to waive such statute of limitations in order for their lawsuit to be filed. However, the situation would meet certain criteria before the court can waive it, which is not common. Also, it is very common that if a waiver is sent to the other or opposing party, it would receive a positive reply.
Tolling the statute of limitations usually works. Tolling is another way of saying ‘suspending or delaying’ the statute of limitations and it is more common than the other two options. Only that the acceptance depends upon the applicable state law. Also, the discovery rule can be classified as a kind of tolling because it also delays the counting of the statute of limitations. In the process of carrying out the cases relating to wrongful death, some situations really demand tolling.
For example, minor children can only use their statue of limitation when they have become an adult. That needs tolling if the person in the middle of a case of wrongful death claim is still a minor. Say, the child’s father dies, that child can only file for wrongful death claim when they turn 18 because that’s when the statute will begin to count. Generally, the court will compare the positive benefits of tolling the statutes, the ability of the plaintiff to file claims, against the prejudice and the prejudice against the decedent.
Do you Still Have Questions About Discovery for Wrongful Death Claims, Time Limit?
The pain that is attached to the death of loved ones can make you feel overwhelmed and stressed. In that situation, the last thing you want to do is go about filing a lawsuit or asking the court to look at your case. Receiving help makes this situation easier, you should talk to a lawyer. They can answer all your questions about wrongful death claims and can help you to a greater extent.