One of the most devastating and difficult situations a family can face is the loss of a loved one due to someone else’s carelessness or recklessness.
Every state in the nation has laws providing family members or the executor of the deceased’s estate the right to seek compensation for the expenses and impacts of the loss by filing a wrongful death claim against the at-fault party’s relevant liability insurance policy. However, there is a time limit that determines how long they have to file a lawsuit for compensation called the statute of limitation.
What Is the Statute of Limitation?
When two parties are in a legal dispute, the statute of limitation sets the amount of time they have to file a legal complaint (lawsuit) in court. Statutes of limitation are placed on many types of cases, including criminal and civil actions. In wrongful death claims, the time begins at the time of the deceased’s death.
In some states, the wrongful death statute of limitation is the same as the limitation to file a personal injury suit. However, the wrongful death statute of limitation in a number of states is shorter than for personal injury claims, making it essential to consult an attorney as soon as possible.
Exceptions can change the length of the statute in some circumstances. For example, if the family members do not quickly discover that the death resulted from another’s negligence, the time limit for filing will be tolled (paused) until such discovery is made.
However, in some claims, the claimant cannot recover compensation through a wrongful death claim if the death occurred if the claimant filed no claim within the personal injury statute of limitation.
What Is a Wrongful Death Claim?
When injured due to someone else’s negligence, a victim can seek compensation through the personal injury claims process. However, they can no longer file a personal injury claim if their injury results in death. However, their family members who have incurred expenses and psychological impacts due to the death can seek compensation by a wrongful death claim filed by them (in states that allow family members to file the claim) or by an administrator of the estate.
Why Is There a Statute of Limitation on Wrongful Death Claims?
The Corporate Finance Institute notes that statutes of limitation protect defendants in legal disputes when they no longer possess key evidence to defend them. This issue is of particular concern as it pertains to certain types of evidence, such as witness testimony and statements from witnesses that were given at the time of the accident.
Because people’s memories tend to fade over time and become less reliable, state lawmakers found that it would be unreasonable for a witness to be expected to remember precise details of an event that occurred many years—or even decades—earlier.
What Happens if You Miss the Statute of Limitation?
Allowing the statute of limitation to expire without filing a wrongful death claim can have disastrous consequences on the deceased’s family’s ability to receive compensation through the wrongful death claims process.
Failing to file the claim within this period generally results in the loss of the claimant’s ability to seek compensation through the civil court system, and frees the at-fault party and their insurance provider from the requirement to resolve the claim.
In other words, asking an insurance provider to consider an expired claim will unlikely produce a settlement offer. Settlement agreements are the most common resolution for wrongful death claims, as they allow both parties to avoid the expense and uncertainty of litigation.
Opening an Estate (in States Where an Administrator Is Needed to File the Claim)
A deceased person cannot file a lawsuit against those whose negligence caused an accident that resulted in death. Even if the deceased’s spouse had a power of attorney that allowed them to make decisions for the deceased during life, an estate must be opened because that power of attorney is no longer in effect after death.
In states such as Illinois, where an administrator of the deceased’s estate must file a wrongful death claim rather than directly by family members, an estate must be opened for the deceased through probate court. This allows the court to appoint an administrator (executor) for the estate who is granted legal authority to file a wrongful death claim on behalf of family members.
In some states, the statute of limitation on the wrongful death claim can be tolled until an administrator is named through the probate process.
Hiring an Attorney to Assist the Administrator With the Wrongful Death Claims Process
Even if someone is appointed administrator of a deceased’s estate, that doesn’t mean they have experience with the legal ins and outs of a wrongful death claim.
Claimants who attempt to seek compensation through the wrongful death claims process without an experienced wrongful death lawyer generally find themselves overwhelmed by:
- The tactics of an insurance company
- The significant amount of evidence and documentation needed to prove that the at-fault party’s liability
- The formalities of the court if the insurance provider fails to settle the claim and the estate need to file a lawsuit.
A wrongful death lawyer has the skills to assist the claimant in all parts of the case. They can help determine liability, gather evidence of liability for the fatal accident, and negotiate a settlement or file a wrongful death lawsuit so a judge or jury can determine the compensation owed to the deceased’s estate or family.
Like personal injury lawyers, attorneys who work on wrongful death claims use a contingent fee billing method that allows the claimant to withhold payment for the attorney’s services until the claim has been compensated through a settlement agreement or a court award. At that time, the payment due to the attorney is a percentage of the overall total of the award.
Valuing the Claim
There are many ways in which a wrongful death can occur, such as through a motor vehicle accident involving cars, trucks, motorcycles, public transportation, or even a pedestrian or bicyclist. Wrongful death can also occur due to a defective product, a property hazard, a medical error, or negligence or abuse in a nursing home.
The deceased could be a child, a retired person, or someone at the peak of their career and raising a family. Because there are so many variables in the type of incidents that lead to a wrongful death claim and the number of family members who will benefit from the claim, there is no “average” settlement or award for this type of case.
Claimants can seek compensation through the claim for both the family members and the estate, and this includes compensation for both the expenses incurred as a result of the death (known as economic damages), as well as the impacts that the death had on the deceased’s loved ones (known as non-economic damages).
Some of the expenses and impacts commonly included in wrongful death claims are:
- The cost of support and services the deceased provided to their family members
- The loss of future earnings that the deceased likely would have made if they had survived the accident and continued their career
- The cost of final medical expenses, a funeral, and burial or cremation
- The loss of comfort, companionship, society, guidance, training, and moral support provided to family members by the deceased
- The loss of accumulations to the estate that would have accrued if the deceased were alive and working
- The emotional distress experienced by loved ones due to the loss
An attorney and their legal team assist the claimant in determining the claim’s value by considering several factors, including the amount of insurance coverage available to compensate the claim but also in gathering the documentation needed to justify that value.
Filing the Claim With the at-Fault Party’s Insurance Company
Contrary to popular belief, a wrongful death claim doesn’t usually begin with a lawsuit. It begins with an insurance claim.
Once the at-fault party’s insurance provider has received the claim, they will assign a claims adjuster to evaluate it and determine:
- Whether the policy the claim was filed against provides coverage of that type of claim. For example, if a death occurred due to a motor vehicle accident, the at-fault party’s homeowner’s policy would not be the appropriate one to file the claim against.
- Whether the policyholder is liable for compensating the expenses and impacts of the family members, the claims adjuster will examine police reports, witnesses, and other information and conduct interviews with the parties involved to determine whether their insured was at fault.
- How much compensation is owed for the claim due to the insured’s liability.
Negotiating a Settlement
Once the claims adjuster evaluates the claim, they can:
- Accept the liability of their insured and pay the claim outright.
- Deny the claim and provide the claimant and their attorney with a written reason for the denial.
- Offer to settle the claim out-of-court for less than its stated value.
Wrongful death claims, like other types of personal injury claims, are typically resolved through the settlement process that allows the parties of a dispute to avoid the expense, publicity, and other negative aspects of a trial.
However, the initial settlement offers made by claims adjusters are generally far below the claim’s value. The attorney can negotiate on the claimant’s behalf to convince the insurer to increase the offer until it reaches a value the claimant will accept as fair compensation.
Filing a Claim in Court
If the claims adjuster fails to make a fair settlement offer, the claim can be filed in court as a wrongful death lawsuit. The case will then go into the discovery phase, which is a time when both parties to a legal dispute have access to the evidence and witness testimony gathered by the other side.
The attorney can also file and respond to motions filed in court that can guide the case toward resolution and begin preparing the case for trial. Settlement offers can continue after you file a lawsuit, even after the trial has begun.
A Wrongful Death Attorney Can File Your Lawsuit Before the Statute of Limitation Expires
The statute of limitation is the main deadline for filing a wrongful death lawsuit. An experienced wrongful death lawyer will manage the timing of the claims process to preserve all legal options for pursuing and receiving compensation. Contact an experienced personal injury attorney so you meet the statute of limitations and protect your right to compensation.