Statutes of Limitations and the Discovery Rule

All personal injury claims are subject to the statute of limitations, which governs the amount of time the surviving family members have in which to file their claim. If the survivors do not file their claim within the timeframe determined by the statutes that govern their type of claim, the claim is considered waived and no damages may be collected, making it very important to consult a wrongful death attorney as soon as possible if you even suspect the loss of your loved one might be the result of negligence. The statutes determining the limitations pertaining to personal injury and wrongful death claims vary from state to state. Some states begin the time from the date of death. Other states determine it to fairly commence from the time the survivors discover, or should reasonably have discovered the cause of death was negligence. In many states, the period of limitations starts when a personal representative is appointed. Deaths that result from a disease caused by a toxic or hazardous substance may have other specific statutes. A wrongful death lawyer familiar with the statutes pertaining to wrongful death limitations in your state will be an invaluable asset when determining how and when to proceed with your claim.
 
In states that believe the right to bring a wrongful death action is a fundamental one, the limitation period begins to run at the time of death, with a few exceptions in special cases. In cases where a decedent knew or should have known the cause of their injury or imminent death before their death, a rule called the “discovery rule” may be applied to their case. This rule starts the limitations period before the date of death, with the argument that the action should have been pursued as soon as the cause of the injury was established.

When a wrongful death action stems from a personal injury action it is termed a derivative action, and may fall under the time limitations of the personal injury claim. Wrongful death cases that involve product liability have specific restrictions, which start the limitations period on the date of death regardless of whether or not the surviving family members were aware of the cause of death. States that have statutes of repose prohibit product liability claims if the product has passed a certain age.

Most states also have specific limitations periods which apply to any death caused by a harmful or toxic substance. Most of these laws require that the action be filed within a certain time period that begins when the connection between the death and the harmful substance was discovered, or reasonably should have been discovered. Most also have a clause that demands the action be filed within a certain time period after the death, regardless of when the discovery was made.

Your wrongful death will have a limitations period even if it does not fall into any of the categories discussed above. If you believe you might have cause to file a wrongful death claim, you should contact a wrongful death lawyer immediately, even if you are not sure. Your consultation with a Mayer Gordon law firm wrongful death attorney will be free of cost, and will help you determine for certain whether or not you have an actionable wrongful death claim.

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