FYI: The statutes of limitations for injuries and wrongful death are rather similar for terrestrial incidents and maritime incidents.
All states have specific deadlines for filing lawsuits. This deadline for bringing a lawsuit is called the statute of limitations. The statute of limitations is a very strict deadline. If, for whatever reason, you don’t file a lawsuit for a personal injury claim until after the statute of limitation expires, your lawsuit will almost certainly be dismissed. There are a couple of ways that a statute of limitations can be extended, but they are very limited exceptions, and you shouldn’t count on them applying in your case.
In a personal injury case, the statute of limitations usually begins running on the day that the you were injured.
The Standard Statute of Limitations in Personal Injury Cases
The statute of limitations in personal injury cases ranges from as short as one year to as long as six years, depending on the state. For example, if you live in a state with a three year statute of limitations for personal injury cases, you would have three years from the day of the accident within which to file a lawsuit against that person for personal injury damages.
The "Discovery Rule" Exception to the Statute of Limitations
Most states have some form of a "discovery rule" exception to the standard statute of limitations in an injury case. In general, the discovery rule
extends the filing deadline in situations where the injured person did not even know about either:
the injury, or
the fact that the potential defendant’s actions may have caused the injury
... until after the original statute of limitations had expired. This situation is not as uncommon as you might think.
Example Of The Discovery Rule
: Let’s say that your state has a two year statute of limitations for personal injury cases, but that your state has a discovery rule that says that the statute of limitations does not begin running in a personal injury until the date that the plaintiff: 1) knew or had sufficient notice that he/she was injured; and 2) knew or had sufficient notice of the cause of the harm.
Let’s say that you were exposed to asbestos in the insulation
in the pipes in your basement, and, as a result, 20 years later, you developed a certain type of lung cancer that only comes from asbestos exposure.
Obviously, the regular statute of limitations has long since expired, so the only way that you could file a personal injury claim against whomever was responsible for your asbestos exposure would be through reliance on the discovery rule.
Let’s say that, after doing your x-rays and a biopsy, your surgeon tells you that you have a specific type of lung cancer that only develops from asbestos exposure, and the doctor asks you if you have any asbestos in the house. You realize that all of the pipes in your basement have asbestos insulation
and that the insulation has been flaking off the entire time that you lived in the house.
In this situation, the statute of limitations would begin running on the day that your doctor told you that your lung cancer was due to asbestos exposure because you now 1) know that you have been injured, and 2) know what the cause of the harm is.
Other Ways to Extend the Standard Deadline
In most states, there are several other methods by which the statute of limitations can be extended.
One way is if the defendant left the state after committing the injury. In most states, the statute of limitations stops running during any time that the potential defendant is outside the state. So, if the statute of limitations in your state is three years, and the defendant was outside the state for two years after the accident, the statute of limitations in your case would be extended by another two years. However, this can be very difficult to prove, and you should not count on this or any extension of the statute of limitations applying in your case until you have spoken with a lawyer in your state about your particular situation.
Another way that statutes of limitation are often extended is if the plaintiff is a minor (i.e., under age 18), disabled, or mentally ill or insane. Most, but not all, states allow extensions of the statute of limitations in these types of situations.
Wrongful death occurs when someone dies due to the preventable actions of another. These actions may be reckless, such as speeding; negligent, such as a company's inadequate warning of potential dangers of a product; or deliberate, such as murder. Family
members may file a civil lawsuit to collect damages to compensate them for the emotional and financial impacts of the death.
If you believe someone wrongfully caused your loved one's death, it is important to get help right away—you have a limited time within which to file a wrongful death suit.
Wrongful Death Statutes of Limitations
Each state has its own statutes of limitations for bringing various types of lawsuits. The time limit in which to file a wrongful death suit is generally between one and three years; in many states, it is two years after death occurs.
If you do not file suit within the allowed time, you will not be able to recover damages. But the clock does not always start ticking at death. Sometimes the clock can be reset by the discovery of new information, such as:
Death is ruled from natural causes, but evidence of medical
malpractice comes to light years later.
Someone deliberately concealed important information about the cause of death.
Use of products that were later found to be defective.
In these cases, the clock may start at the time of the new discovery, although not all states agree. Some states specifically exclude dangerous or defective products from resetting the clock.
The statute of limitations may also depend on whom you are naming as a defendant. For example, in Illinois, naming a municipality as a defendant cuts the statute of limitations—normally two years—to just one year.
When Death Occurs Long After Injury
When a person survives an injury, only to die of complications related to that injury years later, you may be out of luck on filing a wrongful death claim. Because the person initially survived, the incident falls under personal injury statutes of limitation. If that time—usually one to six years depending on the state—has passed, the right to damages is forfeited. The later occurrence of death does not reset the clock or turn the case into a wrongful death claim, and surviving family members have no rights to wrongful death damages.
Maritime Injury Statute of Limitations
One of the most important aspects of filing a maritime injury and/or death claim is understanding the statute of limitations. Statute of limitations are mandated deadlines and all maritime personal injury cases must be filed within the allotted time period. In other words, once a certain amount of time has past after your accident and injury, you are usually unable to file for damages.
Jones Act Statute of Limitations
Under the Uniform Statute of Limitations for Maritime Torts, claims filed for maritime personal and actions covered under the Jones Act must be done within three years from the time of the accident and/or three from the time the accident occurred, giving rise to injuries.
Keep in mind, however, that in certain instances, the statute of limitations may be reduced, depending upon the case. For instance, claims against a ship owned or operated by the United States government
may need to be filed sooner as the statute of limitations is typically reduced to around two years.
There are several intricate laws surrounding the Jones Act statute of limitations and therefore it’s crucial to seek legal
representation beforehand so that you can ensure you legal
rights are being met.
Death on High Seas Act Statute of Limitations
Under § 763a of the Death on High Seas Act (DOHSA), the family of victims who died while at sea have three years from the date of the death to file a claim. Family is defined as the spouse, parent, child, or dependant relative of the seaman who died.
Longshore Harbor and Workers’ Compensation Act Statute of Limitations
The Longshore Harbor and Workers’ Compensation Act (LHWCA) typically allows maritime workers one year from the time of the accident to file a claim. However, if an employer is paying compensation and medical
benefits after the injury, that one-year statute begins when the benefits and compensation stop. In other words, you don’t need to file a claim for benefits while your employer is voluntarily compensating you, but should your employer stop the compensation and benefits, you’ll have one year from the last date of compensation and benefits to file your claim.
In addition, it’s important to mention that before you can file a claim under LHWCA, your employer must complete an official “Employer’s First Report of Injury” form and send it to the U.S. Department of Labor (DOL). If your employer doesn’t send this crucial form in, the one-year statute of limitations is void, and will start only when the form is received. If the form has been received by the DOL, you’ll typically receive a letter stating as such.
and Cure Statute of Limitations
and cure benefits fall under general maritime law, yet the three-year statute of limitations doesn’t always apply. Maintenance and cure benefits are still governed by latches
, meaning that maritime workers may still have time to file a claim even if the statute of limitations has run out. However, if you’re filing for maintenance and cure after the standard three-year statute of limitations, the burden of proof will lie with you, and you must prove what circumstances prevented you from filing your claim in time.
The Death on the High Seas Act, DOHSA, applies “when the death of an individual is caused by wrongful act, neglect, or default occurring on the high seas beyond three nautical miles from shore of the United States”. 46 U.S.C. §30302. Courts have interpreted this provision to refer to the site of an accident on the high seas, not to where death actually occurs or where the wrongful act causing the accident may have originated.
Bergen v. F/V St. Patrick, 816 F.2d 1345 (9th Cir. 1987).
Deaths within three miles of shore are covered by state law, the Jones Act, or general maritime law wrongful death and survival provisions, which typically provide claimants substantially broader recovery than DOHSA.
DOHSA Allows Pecuniary Damages Only
DOHSA allows the decedent’s spouse, parent, child, or dependent relative to recover for “pecuniary loss” sustained by those individuals. Pecuniary losses are damages that can be calculated with some degree of precision, such as loss of financial support from the decedent.
In contrast to the vast majority of wrongful death and survival statutes, DOHSA does not allow for recovery of any damages suffered by the decedent. This means that pre-death medical expenses and funeral expenses are generally not recoverable since these are damages incurred by the decedent or the decedent’s estate, and not his or her family members. In some cases it may be possible to get around this if items like funeral expenses are paid by family members rather than the estate.
Damages under the Act are extremely limited, and unlike most other wrongful death and survival provisions, DOHSA prohibits recovery of non-pecuniary damages. Non-pecuniary damages are damages such as the decedent’s pre-death pain and suffering, and loss of consortium suffered by the decedent’s spouse. In non-DOHSA death cases, non-pecuniary damages often comprise the lion’s share of the case value. The unavailability of such damages under DOHSA can result in what many would consider unfairly low compensation for the families of those killed at sea.
It is important to carefully evaluate every potential DOHSA case to see if an exception applies which would allow broader recovery under another type of wrongful death or survival claim.
If DOHSA applies, the Act is generally the exclusive remedy available. Claims cannot be brought under state law or general maritime law in conjunction with DOHSA. This concept is known as “preemption” because DOHSA “preempts” the laws of the states and maritime common law.
However, DOHSA does not preempt Jones Act death claims against a deceased seaman’s employer, which afford much broader remedies. However, claims against third parties arising from the seaman’s death may fall under DOHSA. Some courts have held that seaman may bring general maritime law death claims for injuries on the high seas, where claims are also brought under the Jones Act. For example, if two vessels collide at sea due to the negligence/unseaworthiness of both vessels, a deceased seaman’s surviving family may assert claims against the seaman’s employer under the Jones Act and doctrine of unseaworthiness, and claims against the other shipowner under DOHSA.
The Act also includes a provision expressly permitting claims under the laws of a foreign country along with or instead of DOHSA claims. The Act states:
When a cause of action exists under the law of a foreign country for death by wrongful act, neglect, or default on the high seas, a civil action in admiralty may be brought in a court of the United States based on the foreign cause of action, without abatement of the amount for which recovery is authorized.
46 U.S.C. §30306. Through this provision, Congress preserved the right to recover under the law of another sovereign nation for whatever measure of damages such law might provide, regardless of any inconsistency with the measure of damages under DOHSA. Courts have held that plaintiffs cannot bring DOHSA claims and foreign claims concurrently against the same defendant—plaintiffs must choose which scheme to proceed under.
See Bergeron v. Koninklijke Luchtvaart Maatschappij, N. V., 188 F. Supp. 594 (S.D.N.Y. 1960). However, in a death case involving multiple defendants, the plaintiff may assert claims under DOHSA against certain defendants, and claims under foreign law against other defendants. See Noel v. Linea Aeropostal Venezolana, 260 F. Supp. 1002 (S.D.N.Y. 1966) (claimants recovered pain and suffering damages under Venezuelan law against Venezuelan airline, and DOHSA pecuniary damages against American corporation which serviced plane).
Limited Survival Actions Under DOHSA
DOHSA provides for extremely limited survival actions (i.e. claims by the decedent’s estate for damages suffered by the decedent). The estate is only allowed to assert claims for damages suffered by the decedent if the decedent files a lawsuit for personal injuries occurring on the high seas, and dies from those injuries during the pendency of that lawsuit. In this limited situation, the decedent’s estate is permitted to assert claims for the decedent’s pecuniary losses, such as medical expenses.
If someone is gravely hurt and may die due to high seas injuries, it is important to file a lawsuit as soon as possible to preserve claims for damages suffered by that person. Fatal injuries can result in complex and prolonged medical care, leading to astronomical medical expenses. The estate will lose the right to recover for these expenses unless the claim is filed prior to the decedent’s death. In cases involving potentially fatal injuries, it is important to consult with a knowledgeable maritime attorney as soon as possible. Ordinarily, you have three years from the date of the accident to file a death claim under DOHSA, but it may be a good idea to file much earlier in certain cases.