What Is the Wrongful Death Statute of Limitations?

For all the great things about California, hazards throughout the state can lead to death. From congested roadways to defective buildings and hospitals where life-or-death errors are made, individuals are seriously injured every day, some resulting in death. If you have lost a loved one in an accident due to another’s wrongdoing, there is no amount of compensation enough to bring back everything you’ve lost. However, compensation can help you move forward in life and tackle the costs that often follow such accidents.

To recover compensation, though, you need to file by a deadline referred to as a statute of limitation While it seems at the beginning of a case as though it is an arbitrary amount of time far off in the distance, your ability to meet the wrongful death statute of limitation has major implications on your ability to obtain compensation. Read on for information about this critical deadline, and how it should inform your approach to bringing a wrongful death action.

What Is a California Wrongful Death Case?

California’s wrongful death law allows certain family members of a deceased individual to seek compensation for the loss of support and other financial and emotional losses they have incurred from the death, whether the death was because of negligence, recklessness, or even an intentional act.

Those family members who are permitted to file a wrongful death claim include:

  • The deceased’s surviving spouse or domestic partner.
  • The deceased’s surviving children.
  • Grandchildren of the deceased if his or her children are no longer alive.
  • The deceased’s parents, siblings, or others who would inherit the deceased’s property through intestate succession, but only if the deceased does not have a surviving spouse or children.

What Is a Wrongful Death Action?

Just about any action that can result in personal injury to someone else and give rise to a personal injury claim may also result in a wrongful death claim if the person dies, rather than just sustaining injury.

Some of the more common types of situations that result in a wrongful death claim include:

  • Motor vehicle accidents, including those involving passenger cars, commercial trucks, motorcycles, rideshares, taxis, buses, bicycles, pedestrians, aircraft, and watercraft.
  • Premises liability situations, which result from a property owner/possessor failing to mitigate hazards on his or her property that can cause injury to guests. This may include slip and fall accidents, swimming pool accidents, elevator or escalator accidents, fire or flooding, and negligent security.
  • Product liability, which involves a dangerous or defective product that causes injury, such as bad medication, medical implement, or perhaps a product such as auto parts, appliances, or children’s toys that pose unreasonable risks to users even when used as labeled.
  • Medical malpractice, which involves a medical error made on the part of a health care provider such as a doctor, nurse, dentist, chiropractor, or a healthcare facility such as a hospital or clinic. Common errors that give rise to a medical malpractice claim include misdiagnosis or missed diagnosis, birth injuries, medication errors, failure to inform a patient of risks of a particular procedure, failure to provide adequate follow-up care, and surgical errors such as unnecessary surgery or wrong-site/ wrong-patient surgery.

Damages Available in Wrongful Death Action

Family members who have filed a wrongful death case in California can seek both economic and non-economic damages through the legal action. The word “damages,” in the arena of tort law, refers to a payment made as compensation for harm. Economic damages refer to a payment made as compensation for tangible expenses you incurred from an injury.

Common examples of economic damages in wrongful death cases include:

  • Burial and funeral expenses.
  • The amount of income and benefits the deceased could have reasonably expected to earn if he or she had survived.
  • The cost of household services that the deceased performed.

Non-economic damages are compensation for impacts of an injury on one’s quality of life that are not as readily quantifiable.

Non-economic damage claims in wrongful deaths may include:

  • The loss of the deceased’s society and companionship.
  • The loss of the deceased’s protection, affection, and moral support.
  • Loss of consortium, which is a damage provided to the spouse or domestic partner of the deceased for the loss of physical intimacy and companionship.

Often, wrongful death cases combine with survival actions, which are additional claims seeking compensation on behalf of the estate.

The damages a survival action can pursue include:

  • Medical expenses for the treatment of the deceased in their final hours following an accident.
  • Lost wages from the time of the injury until the time of death.
  • Conscious pain and suffering that the deceased endured between the time of injury and the time of death.

What Is the Statute of Limitations in a Wrongful Death Case?

One of the most important procedural requirements of a wrongful death claim is the statute of limitations. The statute of limitations is a law that establishes the maximum amount of time that an injured party has to initiate legal proceedings by filing a personal injury claim in court. Failing to file your claim in a court in the proper jurisdiction within the statute of limitations will generally result in losing your chance to pursue compensation for your injuries.

In California, you generally have two years from the date of the accident to file your wrongful death lawsuit in court.

Are There Circumstances When You Have More Time?

Yes, in certain circumstances a claimant in a wrongful death case gets more time to file a lawsuit, which is often referred to as tolling the statute of limitations.

Those circumstances include:

  • Cases where the cause of death was not apparent when the individual died, but is later discovered.
  • Cases in which the family members of the deceased could not have reasonably known a death occurred within the statutory time to file a claim. A situation where this would be a factor: A missing person who was killed shortly after going missing but whose body was not discovered until later.

The Chairs of California’s Judicial Council recommended tolling the statute of limitations on all civil claims—including personal injury and wrongful death cases—in 2020 through Emergency Rule No. 9, requiring the clock to stop running on these cases through the duration of Governor Newsom’s state of emergency order during the COVID-19 pandemic and for 90 days after the order was lifted.

The statute of limitations in a California wrongful death claim is sometimes less than two years, as well. For example, plaintiffs must file claims against a government official or agency within six months.

Why Is There So Much Time Allowed to File a Claim?

While two years may seem like a lot of time to file a claim, it can pass by quickly, especially in wrongful death cases where families are grieving and trying to put the pieces of their lives back together after a tremendous loss. The statute of limitations allows family members time for grief without worrying about a pending legal action. The passage of this time also provides family members with time to get a fuller picture of the losses they’ve incurred from the death. It provides the family with time to learn about the process of pursuing compensation and to find an attorney to represent them.

Your wrongful death attorney also needs as much of that time as possible to conduct at least some investigation into your case to determine all potential sources of liability and all insurance resources that can compensate you, and to collect other information necessary to draft a complaint.

Depending on the circumstances that led to your loved one’s death, this can take quite a while, as evidence in this kind of case often involves working to get access to records of law enforcement investigations and other information that can take time to retrieve.

Some of the documents your attorney will need to review upfront in a wrongful death action will likely include:

  • Medical bills and medical treatment history, as well as bills for other expenses, such as property damage resulting from the incident that claimed the life of your loved one.
  • Information pertaining to the deceased’s income, including pay stubs and lists of benefits that he or she earned through employment.
  • Police reports.
  • Any surveillance footage from the scene of the accident there may be.
  • Witness statements.
  • Photographs.
  • Official government reports.

Once your attorney has conducted sufficient investigation, they will prepare demands for the insurance providers for all at-fault parties. The demands will sum up the value of your case, as determined based on the expenses and impacts you have experienced as a result of the wrongful death. When the at-fault parties and insurance providers receive the demands, they may accept the claim, reject the claim, or make a settlement offer. Settlement offers are typically far lower than the case’s value, but are just a starting point for negotiations.

If you are offered a settlement but decline the offer, your attorney will continue negotiating. At some point, if it appears that the insurance provider is not interested in providing a fair settlement to fully compensate you for your loss, your lawyer will proceed to file a wrongful death lawsuit. Note that the filing of this case doesn’t end the negotiation process.

Even once the case has begun, the parties may settle. A standard requirement for a settlement is that the plaintiff will voluntarily dismiss their case. Indeed, your attorney may file a complaint right away, particularly if you are close to the statute of limitations running out. Negotiations can continue right up until, or even after the trial has begun, but before a final judgment is rendered.

Hiring An Attorney in Your Wrongful Death Case is Affordable, and Worth It

There are many components involved in a successful wrongful death claim, from filing within the statute of limitations to knowing how to deal with insurance companies. An experienced wrongful death attorney will have an immediate grasp on these things and everything else about filing a wrongful death claim to maximize your chances of success.

Still, some individuals delay seeking help from an experienced wrongful death attorney because they are afraid that they can’t afford the attorney’s services. If this is what is preventing you from contacting an attorney, you should know the services attorneys typically offer to get you the legal assistance you need, regardless of your financial situation.

These services include:

  • A free case evaluation. This is a no-obligation conversation between you and an attorney, in which you can obtain answers to your legal questions, learn more about the process of obtaining compensation for the losses you incurred because of your loved one’s death, and learn more about the firm and the services they provide their clients.
  • A contingent fee payment plan that allows you to wait to pay for your attorney’s services until there is a successful outcome to your case. This provides you with the opportunity to pursue compensation when you need it rather than when you can afford it, while also protecting your ability to file your case within the statute of limitations because you aren’t facing delays due to not having enough money to pay.

If you lost a loved one in an accident due to another’s wrongdoing, don’t hesitate to contact an experienced wrongful death action attorney.

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