Just like every other legal issue, the Florida wrongful death statute of limitations is actually a complicated question. As an Orlando wrongful death lawyer, one of the first things I need to know about any potential death accident case is when the person died. The statute of limitations is the time within which you must file your Florida wrongful death claim, or else the claim will be barred. These are strict, unforgiving time limits. So it is absolutely imperative to comply with them and all of their exceptions, exclusions, and limits.
Two Years, With Lots of Exceptions And Exclusions That Can Bar Your Claim Earlier
The simple rule is that the statute of limitations for Florida wrongful death actions is 2 years from the date of death. But the exceptions frequently swallow and completely change the rule. So the bottom line is that you should have a Florida wrongful death attorney analyze the particular facts of your case to determine if they think you can still file any wrongful death claim within the applicable statute of limitations.
Medical Malpractice Statute of Limitations May Be Different
If the wrongful death claim is based on medical malpractice, then the plaintiff must satisfy the different medical malpractice statute of limitation, which even more confusingly says that any claim for medical malpractice must be started:
within two years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commence later than 4 years from the date of the incident or occurrence out of which the cause of action accrued.
In very basic terms, this means that sometimes there may be an argument that medical malpractice actions have a longer (four year) statute of limitations, rather than the shorter (two year) statute of limitations for wrongful death actions, depending on the unique and particular circumstances of each individual case (relating to whether the medical malpractice “should have been discovered” within two years). (By the way, this is one of literally thousands of examples in the practice of law of how a careful, thorough and diligent advocate might find a way around various limitations on claims that otherwise would not be found.)
Actions Against States and Governmental Entities
Actions against states and governmental entities have different statutes of limitations. Generally speaking, a wrongful death action against a state “or subdivision” must be commenced within four years after the claim accrues. But there are other statutory requirements, limitations and exceptions that may further limit that time period. So, again, it is simply necessary to confer with a Florida wrongful death attorney to determine if your potential case might fall within any applicable time periods or deadlines.
An Important Rule That Can Dramatically Shorten The Statute of Limitations, Which Your Wrongful Death Attorney MUST Consider In Some Cases Or Else You Could Lose Your Claim Entirely
Sometimes, after a wrongful death claim is filed against a wrongdoer, that person dies. This is not unusual, for example, if two people were in a car accident together, but the cause of death of the wrongdoer does not change this rule (meaning even if the wrongdoer died from natural causes, this rule would still apply). If the wrongful death lawsuit is pending when the person dies, then the plaintiff MUST file a motion in court to substitute the personal representative of the estate of the wrongdoing deceased person for the original defendant within 90 days “after the death is suggested on record,” which is something the personal representative is responsible for doing. (In other words, the personal representative files the suggestion of death, then the plaintiff in any wrongful death lawsuit must file a motion to substitute the personal representative of the estate of the wrongdoing deceased person for the original defendant (that is, the wrongdoing person before he or she died) in the wrongful death action.)
This is a harsh and unforgiving rule, with which your wrongful death attorney would have to comply if the defendant died when your lawsuit was pending, or else our claim would be forever barred. There was actually a car accident case in Florida where the original defendant died during the pendency of the lawsuit and the plaintiff in the wrongful death lawsuit (which would mean his attorney) did not file this motion to substitute parties within the 90 time period. So then insurance company for the original wrongdoer filed something we call a motion for summary judgment (which leads to a permanent case dismissal if granted) and, even though the trial judge allowed the claim, the appellate courts ultimately overruled the trial judge, holding that the plaintiff’s claim against the insurance company was permanently and forever barred because the plaintiff had not filed this critical document.
Please Be Aware That The Law Changes Often And I Do Not Necessarily Update This Website Whenever Those Changes Occur. There Is Also A Lot Of Room For Argument In The “Rules,” So The Above Should Only Give You A General Idea That There Are Important Time Limits. You Should NOT (I Promise) Rely Upon The Above Information In Making Decisions About Your Case.
If You Are Confused About This Or Any Other Aspect of Your Potential Wrongful Death Case, Please Give Me A Call To Discuss Your Case, Anytime, At (407) 803-2319