What is the Statute of Limitations (SOL) Under Florida’s Wrongful Death Act

cemetery1.jpgRead together, Florida Statute Section 95.11(4)(d) and Section 95.031(1) provide that an action for wrongful death, under Section 768.21 (known as Florida’s Wrongful Death Act), must be commenced within two (2) years of when the last element constituting the cause of action occurs. This is a strict standard that does not take into account the “delayed discovery” doctrine.

The “delayed discovery” doctrine tolls the statute of limitations until the plaintiff either knows or should know that the last element of the cause of action occurred. The only type of wrongful death action to which the doctrine applies and thus tolls the statute of limitations is one arising from medical negligence. See Section 95.11(4)(b). No other type of wrongful death claim is so tolled.

For example, in Raie v. Cheminova, Inc., 336 F. 3d 1278 – Court of Appeals, 11th Circuit 2003, a wrongful death claim based on products liability was barred even though the Personal Representative did not learn of the cause of death until four years after the decedent’s death.

Although not pertinent to wrongful death claims, the other types of actions to which the doctrine applies are:

  • Claims of fraud.
  • Products liability claims that result in injury but not death.
  • Professional malpractice (95.11(4)(a))
  • Intentional torts based on abuse (95.11(7)).

See Davis v. Monahan, 832 So.2d 708 (Fla., 2002).

Another SOL exception for wrongful death is described in Section 95.11(10). This Section eschews the SOL altogether for death caused by the types of intentional torts described in S. 782.04 or S. 782.07.

Florida Statute 782.04 sets forth the acts that constitute murder in the 1st, 2nd and 3rd degree, while 782.07 describes the acts that constitute manslaughter. If death results from any of the acts described in these sections, there will be no time bar, or SOL, for bringing a claim against the wrongdoer under Florida’s Wrongful Death Act.

For example, we were recently contacted about a case involving a college student who died on South Beach during Spring Break from a powerful date rape drug that was slipped into her drink without her knowledge. 95.11(10), in conjunction with 782.04(1)(a)2.c., will allow us to bring suit against the thug perpetrator although the young woman’s tragic death occurred more than two years ago.

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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

Contact us toll free at 866-785-GALE or by email for a free, confidential consultation to learn your rights.