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WRONGFUL DEATH - STATUTE OF LIMITATIONS (“SOL”)


Wrongful Death SOL: A wrongful death action generally accrues [i.e. starts the statute of limitations clock] on the date of death (not the act or injury causing death): "For it is only on the date of death that a wrongful death cause of action becomes complete with all of its elements ." [Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 404; Kincaid v. Kincaid (2011) 197 Cal.App.4th 75, 80-81].

Date of Death: The SOL statute cannot commence to run until the decedent’s death. Arroyo v. Plosay (2014) 225 Cal. App. 4th 279, 289-295; Larcher v. Wanless (1976) 18 Cal.3d 646, 659.  In other words, the accrual date will not be before the date of death, but, in a small minority of cases, the accrual date may be later than the date of death.

Types of Cases:
Section 340.5, a provision of the Medical Injury Compensation Reform Act of 1975 (MICRA), provides in relevant part that:

"In an action for injury or death against a health care provider based upon…professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first."

The one-year limitation period of section 340.5 is a codification of the discovery rule, whereby a cause of action accrues when the plaintiff is aware, or reasonably should be aware, of the injury. The word "injury" herein signifies "both the negligent cause and the damaging effect of the alleged wrongful act." (Steketee v. Lintz, Williams & Rothberg (1985) 38 Cal.3d 46,54.
“A [government] claim against a public entity relating to a cause of action for wrongful death must be presented no later than six months after the accrual of the cause of action. (Government Code, 911.2.)” DeVore v. Department of California Highway Patrol (2013) 221 Cal. App. 4th 454. “The date of accrual of a cause of action for wrongful death is the date of death." (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 404.) [“The date of Levi's death, September 15, 2003, is the date on which the six-month time period for commencement of the action began to run.” Lingenfelter v. County of Fresno (2007) 154 Cal.App.4th 198].

See possible other SOL exceptions at Exceptions to Statute of Limitations.

The SOL period applies to each claimant separately: The SOL period runs separately against each CCP 377.60 claimant. If the statute of limitations has run, any new claimant's lawsuit suit is time-barred [San Diego Gas & Electric Co. v. Superior Court (2007) 146 Cal.App.4th 1545, 1551-1553; Andersen v. Barton Memorial Hospital, lnc. (1985) 166 Cal.App.3d 678, 681, 684.

But, if the administrator of decedent's estate brings a wrongful death action and names the wrong claimants (heirs), then the administrator may amend the complaint to name the proper claimants. In this situation, the amendment is not considered a new action, and, therefore, "relates back" to filing of the original action. [See Mayo v. White (1986) 178 Cal.App.3d 1083, 1091–1092]


SURVIVAL ACTIONS - STATUTE OF LIMITATIONS


Survival Claims SOL: Survival claims are subject to the applicable statute of limitations period of the underlying cause of action. For example, the decedent’s injury or wrongful death claims which survive to the estate are normally governed by the CCP 335.1 two-year limitations period. However, if the plaintiff dies before expiration of the applicable limitations period, an action may be commenced before the expiration of the later of the following times:

(a) Six months after the person’s death.
(b) The limitations period that would have been applicable if the person had not died.(CCP 366.1.)

List of Statute of Limitations specific articles on this website:

California_Statute_of_Limitations

Exceptions_to_Statute_of_Limitations_Tolling

Accrual Statute of Limitations

Defamation Statute of Limitations

Fraud Statute of Limitations

Government Claim Statute of Limitations

Legal Malpractice Statute of Limitations

Medical Malpractice Statute of Limitations

CAVEATS / WARNINGS:

SOL laws are complicated: Statutes of limitations, and the court rules and cases that interpret and apply them, are complicated.  Even if you believe that the statute of limitation deadline might have passed or might be extended by an exception, do not rely on this article, but immediately seek consultation and legal advice from a knowledgeable California lawyer to determine if any of the time-extending exceptions or rules to the statue of limitations apply or not to your case.

Disclaimer: The information provided in this article is informational, only. The subject matter and applicable law is evolving and/or constant state of change.  No legal advice is given and no attorney/client or other relationship is established or intended.  The information provided is from general sources, and I cannot represent, guarantee or warrant that the information contained in this website is accurate, current, or is appropriate for the usage of any reader.  Consult with your own legal counsel before relying on any information on this website or this article.

If a loved one is deceased due to the wrongdoing of another person, business, or government, contact personal injury attorney Matthew B. Tozer.

Copyright 2017

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