Statute of Limitations in a Wrongful Death Case
April 15, 2023 | J.L. King
Under Georgia law, certain specified relatives of someone who died from a catastrophic injury or another similar type of incident can file a wrongful death claim seeking compensation. As a last resort, the estate executor can file the claim instead. Compensation goes to the victim’s relatives.
The statute of limitations deadline for either filing a lawsuit or finalizing the settlement is usually two years after the date of the victim’s death. Missing the statute of limitations deadline is one of the most frustrating ways of losing a wrongful death case. This is one completely avoidable mistake and one that no competent lawyer will allow you to make. Nevertheless, the statute of limitations deadline is a ticking time bomb, and you should always be aware of it.
Survival Actions: Wrongful Death’s “First Cousin”
In a wrongful death claim, relatives of the deceased sue for their own losses that arise from the death, such as grief, emotional distress, and lost financial support. On the other hand, in a survival action, the executor of the deceased’s probate estate sues the defendant to compensate the estate for the deceased’s losses prior to death.
Since the defendant must compensate the probate estate for these losses, compensation eventually goes to creditors of the estate (a hospital, for example) or to estate beneficiaries, such as the deceased’s spouse.
What You Have To Do To Beat the Statute of Limitations Deadline
To beat the statute of limitations deadline, you must perform the following three acts:
- File a formal Complaint with the appropriate court;
- Pay the applicable filing fee; and
- Diligently pursue service of process (having someone deliver a summons and a copy of the complaint to the defendant).
You must file the complaint and pay the filing fee (or qualify for a waiver of fees) by the deadline. By the deadline, you must also have diligently pursued service of process. Keep in mind that you cannot conduct service of process yourself.
As long as you have diligently pursued service of process, you beat the statute of limitations deadline even if it has passed by the time the defendant is actually served. The reason for this rule is to prevent defendants from defeating claims against them by evading service of process.
Exceptions to the Statute of Limitations Deadline
Think of the statute of limitations deadline as a backward countdown to zero. When the count gets to zero, your claim will die. Nevertheless, under certain circumstances, you can temporarily “toll” or pause the statute of limitations.
The Crime Exception
One exception applies when the defendant’s act that killed the victim amounted to a crime. If the state or the federal government prosecutes the defendant, the statute of limitations is tolled until the criminal case is resolved (up to six years maximum).
Inconsistent Results and the Burden of Proof
It might surprise you to know that even if the defendant wins the criminal case, it is still possible for you to win a lawsuit against the defendant over the same incident. This is because the burden of proof in a criminal prosecution (“beyond a reasonable doubt”) is much higher than the burden of proof for a lawsuit (“a preponderance of the evidence”).
The Probate Exception
The statute of limitations deadline can be tolled for up to five years until the court completes probate of the deceased victim’s estate.
Once You Beat the Statute of Limitations Deadline
Once you beat the statute of limitations deadline, you can withdraw the lawsuit or continue to negotiate up until the moment the jury returns a verdict.
Schedule a Free Initial Consultation With a Personal Injury Lawyer
Wrongful death claims are a big deal, and you don’t have forever to file one. Even if you file your case before the statute of limitations deadline expires, your lawyer might have to rush through important aspects of your case. Start preparing your case as soon as an injury occurs, or at the very latest, soon after your loved one passes away.
Contact Our Personal Injury Law Firm For Help Today
For more information, please contact The King Firm at your nearest location to schedule a free case evaluation today.
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