Every motion, action, and complaint filed in a courthouse is subject to strictly enforced guidelines that vary based on the state in which they were filed. Florida’s wrongful death statutes are some of the most complex in the nation and require a lawyer that has seen trial over the course of many years to successfully navigate them.
The statute of limitations on anything filed under the law is in place to prevent misuse of the courts time and resources as much as possible. There are times when a case will land in front of a judge, only to be dismissed regardless. This can be due to the fact that an inexperienced lawyer handled the case, and made errors in judgement when filing documentation to support their case.
This not only wastes the court’s time and resources, but the client is hurt as well, suffering from lack of compensation after hiring a lawyer they believed they could trust with their case. The time limit (“Statute of Limitations”) is strictly enforced in all 50 states to help in discouraging “nonsense” and “frivolous” lawsuits years after the accident or injury occurred, and is also in place to prevent “paper pusher” lawyers from attempting to pursue cases that don’t belong in a courtroom. There is special emphasis placed on wrongful death claims, where the victim is no longer living to speak on their own behalf.
When a specific time limit is exceeded, the right to file a lawsuit is said to be forfeited by the plaintiff regardless of the validity of the claim. “Paper pusher” lawyers, those who haven’t been in the trenches, and haven’t experienced the ins and outs of trial, will often wait too long to file documentation on behalf of their client, risking the compensation rightfully owed to them. If an inexperienced lawyer mishandles a claim, (and therefore exceeds the Statute of Limitations within they state they reside), no matter how thorough the case may have been, a judge will immediately dismiss it without hearing the specifics.
It’s for these reasons that it’s absolutely necessary to retain a Board Certified Civil Trial Lawyer after losing a loved one to a tragic accident for which they were not at-fault.
Legalese: “derivative action”, English: “tragic loss”
Wrongful death is known to lawyers who practice Personal Injury law as “derivative action”. This term applies to an action (accident, injury, assault) that “derives” from, or, arises alongside a death. In some cases, this “derivative action” may be time sensitive and subject to the Statute of Limitations outside of the initial action’s Statute of Limitations.
This may occur because the deceased did not bring a Personal Injury claim in line with the Statute of Limitations in the state in which they resided prior to passing away (by no fault of their own as the claim was made due to accident, assault, or injury, it should be noted). More so, this method of legal action is often pursued because the deceased party could not, and should not have been expected to, bring a Personal Injury claim under the circumstances of their initial injury and then their death.
Consumers create a Class, complexities
In our Product Liability for the Informed Consumer series of articles in early 2018, we explored the separate statutes that apply to wrongful death claims in the instance of a product with such a serious defect it caused bodily injury so severe that the consumer died as a result of the court’s definition of reasonable use of the product. In the case of consumers unknowingly purchasing defective merchandise and assuming that it was safe, there are specific limitations that run from the time of the consumer’s passing. These statutes apply regardless of “reasonable” knowledge on the part of the deceased.
However, when enough consumers come together and form a Class to bring litigation against a company that knowingly sold a defective product or service, the Statute of Limitations once again changes and may allow the team of lawyers on the case more time to pursue the proper legal action against the company. One such case in recent memory, against Monsanto’s Roundup line of products, has been ongoing for nearly a decade, due to experienced lawyers filing the necessary documentation before the Statute of Limitations was exceeded and therefore being granted the ability to proceed with litigation on behalf of the thousands of farm-working clients stricken down by cancer from exposure to the agricultural product.
Lawyers know the law, experienced lawyers know how they work
Each state differs on their Statute of Limitations in regard to Personal Injury, but there are inherent differences between the Statute of Limitations surrounding Personal Injury and the Statute of Limitations surrounding a case which resulted in a wrongful death. The state of Florida has clearly defined, as well as frequently updates, their stance on the Statute of Limitations in regard to wrongful death on their website.
This would be where the “Discovery Rule” is applied to such cases. When pursuing wrongful death litigation, the Statute of Limitations clock is said to start ticking down when the surviving family members of the decedent uncovers through the due diligence of a lawyer who has a firm grasp of wrongful death claims, the specific cause for the death of the victim.
State statutes, simplified
There are several states that have statutes stipulating the right to bring a lawsuit in the event of wrongful death is “fundamental”. Fundamental meaning, a right and not a privilege. In states that abide by this statute, the family of the victim’s Statute of Limitations would begin at the time of their loved one’s death (with respect given to cause of death being determined in a “reasonable” amount of time). Florida, however, is not yet one of the states that abides by this practice, though all hope is not lost. A lawyer should be well versed in the statutes within the state their client resides and should be able to pursue legal action in a trustworthy, timely manner that provides both satisfactory financial and judicial compensation.
Before the clock starts ticking, a reasonable amount of time is given to determine the cause of death and pursue the proper Discovery in the case. This is why a lawyer must be familiar with every aspect of wrongful death claims, and have extensive knowledge of both courtroom and in-office procedure. They must know how to properly apply the Discovery Rule.
The “Discovery Rule” is important to understand fully because it’s often applied in the case of wrongful death claims. In order for the court to determine whether the victim could have reasonably known that illness or injury catastrophic enough to be fatal was to occur before they passed away, a lawyer must determine whether or not the death was directly caused by another person. If the victim can be proven to have reasonably known an injury or illness was considered fatal, the clock begins ticking prior to the actual death. For example, thousands of victims living with terminal cancer caused by Monsanto’s Roundup have begun to file their Class Action claims prior to their inevitable deaths.
Emotional, legal needs met
Even the most legitimate wrongful death actions can exceed the statute of limitations if the plaintiff doesn’t act in a timely manner to file a lawsuit. Because each case varies so dramatically (making each individual wrongful death tragic and unfathomable no matter how many times a lawyer has taken on a case of that nature), it’s important to consult a lawyer for whom this isn’t “their first rodeo”. A senior lawyer must take point on wrongful death cases, while newer and less experienced lawyers learn alongside them.
After exploring each point made within this article, the sound reasoning behind why the first thing family members of a deceased victim should do after attending to the emotional needs of those left behind is to seek experienced legal counsel can now be more fully realized.