How To File Your Wrongful Death Claim Past The Time Deadline

Grieving families delay hiring an attorney and filing a lawsuit for the wrongful death of a family member for many reasons.  They may not realize how quick time flies.  A delay in hiring a wrongful death lawyer can lead to the time to file the claim having elapsed.  This article explains the time deadlines for wrongful death claims and when longer time periods may be used.

A Bicycle Pedestrian Accident Leading to a Wrongful Death

Tom is an eleven-year-old boy from Lee’s Summit, Missouri.  He rides his bicycle to school.  He crosses Mo. Highway 50 on his way to junior high school daily.  Tom is a good boy and obeys the traffic signals.

School starts often before sunrise, while people are hurrying to work.  One day while crossing an intersection, Tom and his bicycle are hit by an automobile following a motorcycle, both running a red light.  The motorcycle gets away.  The vehicle stops and waits for the police and ambulance to arrive.

Tom’s family is rightfully devastated and grieving.  It takes a long time for them to get back on their feet.  They delay seeking a lawyer because of the unpleasant nature of the claim.  More than two years elapses.

• Do they still have a claim?
• How do they pay the bills?
• What is a lawyer to do?

Statutes of Limitations; How they are Avoided; When they Bar Claims.

Claims for the death of a family member must be brought under the wrongful death statute.  This is Mo. Stat. § 537.080.  It states that when a person has died because of the wrongful act of another, the spouse, living children, or surviving relatives of the deceased may bring a lawsuit on the descendant’s behalf.  Only one claim may be brought.  The people who stand to benefit are “the wrongful death class.”  Id.

Why History of Wrongful Death Statutes is Important to You. 

Wrongful death lawsuits did not exist traditionally in America or Britain.  There is some debate whether commong law courts in Britain and America recognized the right to sue for the death of a loved one.  However, the majority of courts believe such “judge” court claims did not historically exist.

This lack of the right to sue when someone wrongfully kills another lead to many unjust results.  In response, American State legislatures passed wrongful death statutes in the mid 1800s to allow justice for those who have suffered the ultimate loss.

The Purpose of Wrongful Death Lawsuits

The purpose of the wrongful death statutes is as follows:

1. Provide compensation to wrongful death class members for their loss
2. Ensure that wrongdoers pay for the consequences of their actions
3. To detour wrongful conduct that may lead to death.

O’Grady v. Brown, 654 S.W.2d 904, 909 (Mo. banc 1983).

What Is A Statute Of Limitation?

The term “statute of limitations” is a legal term defined as a time limit imposed by the legal system in which a claim, lawsuit, or criminal action can be filed in court.  It is the maximum period of time a victim can delay before filing their lawsuit.

The History of Statutes of Limitation

Statutes of limitations have a history that goes back to the year 1066 in English common law.  This is right after the conquest of Britain by William the Conqueror.  This was the origin of the English law, what we call “common law.”  America adopted it as colonies, then as a nation.

Why Do we Have Statutes of Limitations?

The idea of the statute of limitations is to ensure the parties will be diligent in their efforts.  The purpose is primarily to protect the defendant, in criminal cases as well as civil cases.  These laws encourage lawsuits to be filed while the evidence is still fresh and witnesses’ memories are still clear.

Time Periods for Statutes of Limitation

The statute of limitation time period differs from state to state.  The time period differs from case type to case type.  If the time period for a statute of limitation elapses, you can no longer file a valid claim in court.

Statutes of limitations can be as long as ten years for many contract disputes.  Even longer periods exist for certain crimes such as under-age rape, murder, and other major felonies.  Statutes of limitations can be as short as one year.  For example, in Louisiana, there is a one year statute of limitation for most every case.  Employment cases can be even shorter.  Victims can have as short as 180 days to file a claim.

A wrongful death claim in Missouri must be brought within three years.  R.S.Mo. § 537.100.  There are many ambiguities in the law.  Both a wrongful death statute and courts order that the statute be “liberally construed.”  Section 1.010; O’Grady, 654 S.W.2d at 904.  This means that whenever there is an ambiguity and the laws is not precisely on point, deference should be given to the victims.

 How Can A Statute Of Limitations Be Longer Than The Deadline Ordered By The Law?

What Is Tolling?

A statute of limitation can be “tolled.”  This is a legal term that means that the time limit deadline is paused.  This “tolling” occurs, for example, when one party is under some sort of legal disability.  For example, a personal injury victim may have a traumatic brain injury.  They may lack the legal capacity to act, or be a child or someone with a mental illness.

Some statutes of limitations can be tolled for military members serving abroad.  Tolling includes situations like the following:

• Plaintiff is a minor (child) the statute does not begin to run until he reaches the age of maturity.
• Plaintiff has been declared insane
• The victim is in prison for a felony
• Defendant has fled and cannot be found in a criminal case
• Defendant is currently undergoing a bankruptcy proceeding

What Is Accrue?  The “Discovery of Harm” Rule

“Accruing” is different than tolling.  The wrongful death statute does not define what it means to “accrue.”  Therefore, it is left to the courts to define it.

The courts define accrual as, in essence, when the statute of limitations clock begins to run.  If a lawsuit has never accrued, there is nothing to toll, because an event or a circumstance cannot interrupt an event which is never started.  Bowlin v. St. Luke’s Health System Inc., W.D. 75364 (Mo. App. W.D. 2013).

The Test to Accrue

A statute of limitations begins to accrue when one of the wrongful death class members either knows or can reasonable discover they have a wrongful death claim.  See State Ex. rel. Beisly v. Perigo, 469 S.W.3d 434, 437-38 (Mo. 2015).

In the words of United States Supreme Court Justice Stevens, a wrongful death claim accrues when a “diligent plaintiff has knowledge of facts sufficient to put him on notice of an invasion of his legal rights.”  U.S. v. Kubrick, 444 US 111, 126 (1979).  In other words, a lawsuit “accrues when the right to sue arises.”  Hunter v. Hunter, 237 S.W.2d 100,103 (1951).

How Defendants Conceal Their Wrongful Conduct, Causing Wrongful Death Statutes Of Limitation to Accrue

It is common for corporations and people to hide their wrongful acts.  It is expected that employees, agents, and loved ones sometimes cover up the ill deeds of those whom they care for.  Employees jump to the aid of employers to impress.  Sometimes people cover-up merely out of spite.

Rather than curse such acts, we should reveal how they typically arise.  This is as follows:

• Threatening or coercing employees to conceal information concerning their error
• Failing to request an autopsy of a deceased despite the suspicious nature of their death
• Telling family members the death was “natural”
• Failing to convene a committee to review the medical death, or code blue, or to determine how to prevent future deaths from similar circumstances
• Failing to inform others of the wrongful conduct that caused the death
• Failing to inform the medical community, such as licensing boards about the wrongful conduct
• Failing to invest the perpetrator who killed
• Impeding a police investigation
• Failing to preserve evidence
• Hiding evidence
• Destroying evidence

See Joan M. Lockwood, Wrongful death causes of action timely filed though death occurs more than three years prior to suit, The Missouri Trial Attorney 16 (Winter 2013).

Actions and omissions such as these are critical evidence to convince a court to accrue a statute of limitations when the wrongful death time period has elapsed.

Is Fraudulent Concealment Needed to Delay the Start of a Wrongful Death Clock?

Fraudulent concealment is not needed.  The law does not even require a “bad guy.” All that is needed to accrue a wrongful death statute of limitation is persuasive evidence that the class members were prevented from knowing or reasonably discovering that they had a wrongful death claim.  See Jepson v. Stubbs, 555 S.W.2d 307, 311 (Mo. banc 1977); Nelms v. Bright, 299 S.W.2d 483, 487 (Mo. banc 1957); Beisly, 469 S.W.3d at 438.

Expect for the defendant to argue that the statute of limitations started at the time of death.  Use the facts of the particular circumstance you are in.  Try to fit them into the categories I have listed above.  Therefore, argue the time of accrual and any tolling facts that may help you.

How To Survive an Allegation that Your Wrongful Death Claim Is Too Late

The following arguments should be proposed to the court and supported by evidence.

1. Argue that failing to allow the claim goes against the three purposes of the wrongful death statute (see above)
2. Accrue – display how the wrongful death claimants did not know of facts supporting the claim until a particular date
3. Accrue – demonstrate how the evidence revealing the claim was not reasonably discoverable until a particular date
4. Accrue – argue that actions taken by the wrongful death claimants would have revealed the wrongful death claim, but for defendants concealment.
5. Accrue – list out and explain the actions the wrongful death claimants would have taken, if the defendants would not have acted to conceal the deadly wrongful conduct.

The Need for a Wrongful Death Law Firm

As one can see, wrongful death actions vary considerably from ordinary personal injury automobile accidents.  They involve different laws.  They involve different fact searches.

There are ways in which a simple mistake can cause entire claim to be extinct.  I encourage you; if you have a wrongful death claim, seek the services of wrongful death attorney so these problems can be avoided.  The idea after all is to seek compensation for victims, and detour future deaths.

Author:

Matt Hamilton of Hamilton & Associates, Lawyers

• Juris Doctor
• Trial Attorney