When a wrongful death occurs, how long do you have to file a case for compensation? Our Florida wrongful death attorneys explain the state’s statute of limitations for wrongful death.
Understanding the Statute of Limitations in Florida Wrongful Death Claims
What is a statute of limitations?
A statute of limitations is a time limit to start a legal case. It’s a fixed amount of time to begin a new case, regardless of the specific circumstances of the case.
What to know about the statute of limitations for wrongful death in Florida
Here’s what our attorneys want you to know about the statute of limitations for wrongful death:
- You have two years to file a wrongful death lawsuit for compensation in Florida
- Even if you have already been in contact with an insurance company or filed an insurance claim, the clock is ticking on filing the case
- It doesn’t matter how great the case is. Despite having a great case, it may be quickly dismissed if you miss the deadline
- When the statute of limitations is missed, the defense can ask that the case be thrown out on those grounds alone. The merits of the case aren’t even considered
- The personal representative of the victim is the one who brings a wrongful death lawsuit. Even though family members are the beneficiaries, it is the representative that brings the case
If you think you may have a wrongful death case, don’t wait to contact our attorneys. We can investigate, determine legal liability, and prepare your case filing. It’s to your advantage to contact a lawyer as quickly as possible.
What does it mean to fulfill the statute of limitations?
Fulfilling the statute of limitations means formally starting a legal claim. It means filing the first set of court documents. Filing an insurance claim or even sending a demand letter isn’t enough. Meeting the requirement means formally starting a legal case regardless of how much preparation or other things may have happened.
Is the Florida wrongful death statute of limitations the same as other injury cases?
No. Cases based on negligence, where the victim is injured, but there is no fatality, have a statute of limitations of four years. When a death occurs, the statute of limitations is half as long, or two years.
What Is the Florida Wrongful Death Statute of Limitations?
Based on the 2022 Florida Statutes § 95.11(4)(d), the statute of limitations for wrongful death in Florida is two years.
There are some exceptions.
Does the Florida wrongful death statute of limitations run from the date of injury or the date of death?
The Florida wrongful death statute of limitations generally runs from the date of death. Surviving family has two years from the date of the person’s death to file their claim.
See The St. Francis Hospital, Incl., v. Thompson, 31 So. 2d 710 (Fla. 1947) (“The statute of limitations commenced to run upon death.”).
What are the exceptions to the Florida wrongful death statute of limitations?
Exceptions that may apply to the Florida wrongful death statute of limitations are:
- Delayed discovery of medical malpractice
- The defendant is out of state
- The defendant is using a false name, so they can’t be served
- The person is hiding so they can’t be served
- Fraudulent concealment
See Florida Statutes § 95.11(4)(b) Limitations other than for the recovery of real property, Florida Statutes § 95.051 – When limitations tolled, Fulton County Administrator v. Sullivan, 753 So. 2d 549 (Fla. 1999).
What is accrual vs. tolling for the statute of limitations?
Accrual is when the statute of limitations begins. Tolling is when the clock on the statute of limitations pauses for a good reason. Having a delay on the statute of limitations accruing or having it tolled has the same effect – you have more time to pursue the case.
Florida Wrongful Death Statute of Limitations Exception – Medical Malpractice
Generally, the usual two-year statute of limitations applies for wrongful death stemming from medical malpractice. However, there may be an exception when it wasn’t known that the death was related to medical malpractice. In that case, the statute of limitations is two years from when the malpractice was discovered or should have been discovered with due diligence. There’s a total four-year limit, no matter what. (Florida Statutes § 95.11(4)(b).)
In Harr v. Hillsborough Community Mental Health Center, 591 So.2d 1051 (Fla. Dist. Ct. App. 1991), the court said that the mere death of a person does not automatically trigger the running of the statute of limitations in a medical malpractice case. Notice of a possible legal injury and invasion of legal rights is necessary to commence the period of limitations. See also Rogers v. Ruiz, 594 So.2d 756 (Fla. Dist. Ct. App. 1992).
See Barron v. Shapiro, 565 So. 2d 1319 (Fla. 1990) (“[T]he limitation period commences when the plaintiff should have known either of the injury or the negligent act.”); Diaz v. United States, 98-4015 (1999) (Extending a discovery rule for a medical malpractice wrongful death claim where the case was brought against the U.S. government under the Federal Tort Claims Act.).
What is the wrongful death statute of limitations when the case is against the State of Florida?
Two years. Effectively, the same two-year statute of limitations that applies in all wrongful death claims also applies when the defendant is in the State of Florida.
Florida Statutes § 768.28 is the Florida waiver of sovereign immunity in tort actions law. The law creates unique timelines and requirements when the defendant is the government.
- 768.28(6)(a) creates a general timeline for presenting the claim to the agency involved. For wrongful death actions, the claimant must present the claim in writing within two years and formally file their action for damages within two years. The timeline for wrongful death is shorter than it is for other government cases that allow for notice within three years.
- 768.28(6)(a) states the two-year notice requirement. Then, § 768.28(14) says that an action for damages arising from wrongful death must be commenced in the same statute of limitations that applies in other cases, which is § 95.11(4).
Consultations Available for Wrongful Death Cases
Maderal Byrne & Furst PLLC is a team of former federal prosecutors now representing individuals and families in complex litigation, including wrongful death. Our team can give you a personalized consultation and review how the statute of limitations may apply to your case. Contact us today.