When someone you love dies suddenly, it can feel like your whole world has stopped. What’s only just begun, though, is the clock on the wrongful death claim, called the statute of limitations. Statute of limitations means how long do you have to file a lawsuit; it does not have to be concluded, but it must be filed and diligently served upon the defendant(s).
Of course, a lawsuit isn’t the first thing anyone is thinking about in the wake of a crash death or if someone has been shot and killed or if the loved one died falling through a window or off a deck, but it is important to consult with a personal injury trial lawyer as soon as practical. You need someone to advocate for the deceased. Also, in Georgia, you only have two years after a wrongful death to sue.
“But why should I hire a lawyer and potentially bother suing? What good will that do?”
It’s true that a wrongful death lawsuit isn’t going to bring the person you love back. What it can do is:
- Help provide closure to survivors after trauma and tragedy.
- Hold accountable negligent parties (helping to ensure they don’t hurt anyone else).
- Give survivors a chance to recover financial relief. Monetary damages help cover things like hospital bills, lost wages and funeral expenses. It can be a financial lifeline to the decedent’s surviving spouse and children. Damages can also be paid for things like pain and suffering, emotional distress and loss of consortium.
For these reasons, a wrongful death claim is at least worthy of consideration after a fatality. It’s understandable that survivors need time to make the decision, but it’s important to know that you don’t have an unlimited amount of time. If you miss the filing deadline, that door to justice may be forever closed. That’s why it’s better to contact an Atlanta wrongful death lawyer sooner than later.
Georgia’s Wrongful Death Statute of Limitations
Under Georgia’s Wrongful Death Act, if an individual is killed as a result of the wrongful act of another person or party, then the family of the deceased individual has the right to bring a wrongful death claim.
The Wrongful Death Act establishes that the family of the individual who died can make a claim for “the full value of the life of the decedent.” O.C.G.A. § 51-4-2. In most cases, a wrongful death claim must be filed within two years of the victim’s death, although in certain circumstances it can be longer.
The “full value of the life” is measured from the point of view of the person who died. Brock v. Wedincamp, 253 Ga. App. 275, 281-82 (2002). This has two parts: the intangible, which includes the decedent’s relationships, family, and reasons for living; and the tangible, which includes the money that the decedent would have earned and the value of any household jobs that the decedent handled.
If the person who died is survived by a husband or wife, then that spouse generally has the right to bring the wrongful death claim under Georgia law. If there is no surviving spouse, then any surviving children may bring the claim. If the person died without any spouse or children (for instance, if the decedent was a child), then the parents or an administrator can bring the wrongful death claim.
Georgia’s Estate Claim for Wrongful Death Statute of Limitations
In addition to a wrongful death claim, there can also be an estate claim. The statute of limitations is generally two years from the date of death plus the amount of time to set up the estate for the deceased.
The family of the deceased individual usually brings claims on behalf of the deceased’s estate, such as claims for the pain and suffering experienced by the decedent. Interestingly, there is no obligation to set up an estate and many times wrongful death claims are pursuit without also pursuing an estate claim.
Wrongful Death Claim
A wrongful death claim is created by statute. This claim is for the “full value of the life of the decedent” from the deceased’s eyes. O.C.G.A.§ 51-4-2(a). In Georgia, this means that a jury is asked to consider what this person’s life meant from the perspective of the person who died. Brock v. Wendicamp, 253 Ga. App. 275, 281 (2002).
The “full value of the life” has two parts. First, it includes the “intangible” value of life. This intangible component includes the parts of life that we value most, like spending time with family and friends, relaxing, having fun, exercising, raising children, love, playing sports, daily activities, volunteering, or life milestones like graduating from high school or having children.
Second, the “full value of the life” also includes “tangible” value. Also called the “economic” value of a life, this component refers to the economic value of the things the decedent did. The tangible value of a life includes the money that the decedent would likely have earned throughout his or her life as well as the economic value of things like mowing the yard, washing the dishes, taking out the trash, driving children around, or caring for older relatives.
The other claim, called the estate claim, permits the family of the decedent to recover for the pain and suffering of the decedent, any medical bills incurred before death, funeral expenses, and a few other items.
In Georgia, any claim for punitive damages must also be brought by the estate. If the decedent had a will, then the administrator named in the will must bring the estate claim. If the decedent did not have a will, then Georgia’s laws of intestacy will determine who can bring the claim (O.C.G.A.§ 53-2-1 et seq.)
Wrongful Death Due to a Traffic Violation
If the wrongful death car accident occurred due to a violation of Georgia law – be that a violent crime or a traffic violation – the law allows for the statute of limitations to be “tolled” (in other words, the clock is paused) pending the outcome of the criminal case. Neither criminal intent nor criminal negligence is required to trigger the tolling statute, which means any wrongful death lawsuit involving a car accident in which the at-fault driver was also charged with a crime or traffic violation could be tolled until either the final disposition of that criminal case OR six years, whichever time frame is shorter. The two-year statute of limitations would begin running from that point. Theoretically, this means one might have up to eight years to file.
Other reasons for which a statute of limitation might be tolled in a car accident case:
- One is imprisoned or disabled when the cause of action arises.
- The decedent’s estate is unrepresented (up to five years).
- A person is a minor when the cause of action accrues.
Because all of this is heavily dependent on the circumstances of your case, it’s not a good idea to wait to talk to a lawyer.
Whether You Intend to File a Lawsuit or Not, You Should Confer with a Lawyer who has Experience with Wrongful Death Cases
Losing a loved one is a terrible experience, but you should look for a lawyer to guide you through the process. The right lawyer will explain your options and will help guide you through everything from how to handle medical bills to whether to file a lawsuit. Even if you’re positive you have plenty of time to hire a lawyer, know that there are several practical reasons not to wait very long. These include:
- Preservation of evidence. Some kinds of evidence, such as red-light camera footage, accident scene photos, or business surveillance recordings, could be lost forever if you don’t act very quickly. The more time goes by, the tougher it will be also to locate witnesses or have credible witnesses who can remember what happened with confidence and clarity.
- Avoiding mistakes. There are sometimes missteps people make – particularly when their judgment is clouded by grief – that could hurt their chances of obtaining just compensation. A good example is giving a recorded statement to insurance adjusters or signing off one a blanket medical records authorization. When you hire a wrongful death lawyer, we handle all of that for you and offer sound legal advice.
- Insurer negotiations. You may not even have to file a wrongful death lawsuit if you can successfully negotiate with an insurer. But research has proven you’re much more likely to obtain fair compensation from the insurer when you’ve got an experienced injury lawyer working on your behalf – someone who knows the law and what your case is worth.
If your loved one has died and you think it was a wrongful death, our Atlanta wrongful death attorneys can help you determine how quickly you must act to pursue a claim.
The foregoing answers are not legal advice and are merely a general overview. You are advised to consult a lawyer to address your specific situation. For more information or to inquire about a free consultation, contact Stephen D. Apolinsky, an experienced Atlanta injury attorney, at Apolinsky & Associates at (404) 377-9191 or email him at email@example.com.