How long do I have to bring a wrongful death lawsuit?
The wrongful death Statute of Limitations in Florida is generally, TWO YEARS from the date of death. The Statute of Limitations is the time in which the personal representative has to file a lawsuit against all potential defendants. If a lawsuit is not filed within this time frame, with limited exceptions, the lawsuit will be forever barred.
Limited exceptions to the rule
There may be extenuating circumstances that extend a statute of limitations. For example, in medical malpractice cases, the statute of limitations runs from the time the patient learned of the malpractice or should have learned of the malpractice. Most lawyers are reluctant to fight cases under a tolling exception the statute of limitations. Case law governs these situations and requires factual findings by the trial judge. Don’t assume the statute of limitations has run on your loved one’s case even if it has been two years from the date of death. There are numerous exceptions to the general rule and every case is different.
Actions based on contracts, like underinsured motorist claims, are subject to a FIVE YEAR statute of limitations. This is true even if the underinsured motorist claim is a claim for wrongful death damages. It would be poor practice by any lawyer not file a lawsuit on a wrongful death action within the two-year wrongful death statute of limitation. Likewise, if you have an underinsured motorist claim for wrongful death you should take action immediately and not wait.
The best practice to preserve your rights, or the rights of your loved ones, in wrongful death cases, is to contact an experienced attorney as soon as possible. It takes time to conduct a meaningful investigation and to prepare your case.
A common mistake we see is families waiting until the final months of the statute of limitations to contact a lawyer. Many lawyers will not accept cases in the final months of the statute of limitation due to the risk of committing legal malpractice. It is imperative you present your case to a qualified lawyer early, so they have time to determine the liability of all potential defendants and to ensure defendants are named properly in the lawsuit.
If you have a wrongful death lawsuit pending with a lawyer and she or he has not filed the lawsuit in the months before the Statute of Limitations demand to speak with your lawyer to learn why. You have a right to be reasonably updated on your case. You also have a right to know if your lawyer will take action on your case. Some lawyers hold cases till the last minute hoping to settle. When a settlement does not come in, they drop the case at the last minute leaving the client with no time to find other representation.
Florida Statute 95.11(4)(d)
Mark R. Osherow (2003) Florida Medical Malpractice and the Statute of Limitations. Florida Bar Journal Volume LXXVII, No.7