Brian White | November 29, 2023 | Wrongful Death
You can file a lawsuit if you suffer a personal injury due to someone else’s misconduct. In some cases, you don’t even have to prove misconduct to win. But what happens if the victim dies from their injuries?
It is possible to file a wrongful death claim. However, Texas imposes a statute of limitations on wrongful death cases. This creates a deadline on your ability to file a wrongful death lawsuit.
What Is a Wrongful Death Claim?
A wrongful death claim is a demand for compensation for the loss of a human life. In most cases, the plaintiff must prove that the defendant’s misconduct caused the victim’s death. The deceased victim’s surviving spouse, children, and parents can file the claim. Courts divide compensation among survivors, but often, a settlement is reached before trial.
Survival Actions
A survival action is essentially a personal injury claim filed on behalf of the deceased victim. Surviving relatives and the victim’s estate executor can file the action. Damages equal the amount of money the deceased victim could have won if they had survived their injuries and filed a personal injury lawsuit themselves.
What Is the Statute of Limitations?
The Texas wrongful death statute of limitations sets the deadline by which eligible parties must file a wrongful death lawsuit. The statute of limitations clock starts ticking on the victim’s date of death, and it runs until two years pass after the date of the victim’s death.
Why Is There a Statute of Limitations?
The statute of limitations deadline is the result of a balancing of interests. On one hand, the plaintiff in a wrongful death action needs access to the courts and time to prepare their claim. On the other hand, evidence grows stale over time. If enough time passes, a fair trial might become impossible. The statute of limitations deadline aims to allow time to file a claim, but not too much.
How to Beat the Statute of Limitations Deadline
To beat the statute of limitations deadline, you need to file a lawsuit. Once you do this properly, you have beaten the statute of limitations deadline and may still be entitled to compensation.
To avoid the statute of limitations deadline, you must:
- Draft a complaint and the summons.
- File the complaint and the summons with the clerk of the Harris County Civil Court at Law.
- Pay the appropriate filing fee to the clerk of the court.
- Execute “service of process.” You must diligently pursue service of process to beat the statute of limitations deadline.
The defendant cannot force you to miss the statute of limitations deadline by deliberately evading service of process.
Exceptions to the Statute of Limitations Deadline
There are several exceptions to the Texas wrongful death statute of limitations. Talk to a lawyer if you believe you might qualify for one of them.
Child Victims
If a minor (under 18 years old) suffers the wrongful death of one of their parents, the statute of limitations deadline doesn’t begin running until the child’s 18th birthday. Essentially this means that they have until their 20th birthday to file a wrongful death claim.
If you find yourself in this situation, be aware that you do not have to wait until you turn 18 to file a lawsuit. An adult can file the lawsuit on your behalf. The court may appoint a parent for this role.
Mental or Physical Incapacity
If you suffer from a mental or physical disability that prevents you from pursuing your claim, the statute of limitations period is suspended during your period of disability. A typical case involving this exception is when someone dies in a car accident, and their surviving family member is rendered comatose by the same accident.
The Discovery Rule
The discovery rule exception applies if you fail to realize you have a claim by the date of the victim’s death. You might not know that your loved one’s death was wrongful, for example, until some time after their death. This might happen if your loved one died of cancer due to exposure to toxic chemicals, for example.
If this exception applies, the statute of limitations clock doesn’t begin ticking until you discover the cause of the death. One caveat is that you must be reasonably diligent in pursuing information about the victim’s death. Suppose you failed to act with reasonable diligence. In that case, the statute of limitations clock will resume ticking on the day that you should have discovered the cause of the victim’s death, whether you actually discovered it or not.
Fraudulent Concealment
Suppose the defendant fraudulently conceals their misconduct or conceals any information that would allow you to realize that you have a claim. In that case, the statute of limitations clock does not begin running until you discover the fraud. An example might be a negligent doctor who falsifies medical records.
The Defendant’s Location Is Unknown or Out of State
Either way, it may be impossible to “serve process” on the defendant unless they are in the jurisdiction and you know where to find them. The statute of limitations clock begins ticking again when the defendant returns to Texas.
The Statute of Repose
There are several exceptions to the statute of limitations. The discovery rule, for example, allows plaintiffs to extend the statute of limitations period. The Texas statute of repose sets an ultimate deadline of 10 years after the date of death. Even if an exception applies, you cannot delay filing a lawsuit more than 10 years after the victim’s death.
Contact the Houston Wrongful Death Lawyers at Attorney Brian White Personal Injury Lawyers For Help
Wrongful death claims are often worth a lot of money, and defendants fight hard to avoid paying. You can be almost certain that a defendant will hire a lawyer to represent them. Consequently, you will need one too. Under the contingency fee system that most lawyers use, however, you only pay legal fees if you win your claim.
If you are dealing with the loss of a loved one after a tragic accident, contact a Texas wrongful death lawyer to learn about your legal options.
Attorney Brian White Personal Injury Lawyers
3120 Southwest Freeway, Suite 350
Houston, TX 77098
United States
Attorney Brian White Personal Injury Lawyers – East Fwy
11811 East Fwy, Suite 630-06
Houston, TX 77029
United States
Attorney Brian White Personal Injury Lawyers – South Loop
2600 S Loop W, Suite 293
Houston, TX 77054
United States
