A Closer Look at Limitations in Wrongful Death Cases

OriginallypostedonTexasLawyer,October2022.WrittenbyAttorneyQuentinBrogdon.

“Statutes of limitation in wrongful death cases can be confusing and seemingly contradictory. Limitations do not begin to run until the date of death in some cases, but limitations begin to run even before death in other cases.”

In RUSSELL V. INGERSOLL - RAND , the Texas Supreme Court summarized the limitations rule in wrongful death cases as follows: “If a wrongful death action exists, it accrues, not when the decedent was injured, but at his death, and the limitations period on that action begins to run at death. But if a wrongful death action does not exist because the decedent could not maintain an action in his own right immediately prior to his death, for whatever reason, then no wrongful death action ever accrues.”

Statutes of limitation in wrongful death cases can be confusing and seemingly contradictory. Limitations do not begin to run until the date of death in some cases, but limitations begin to run even before death in other cases.

In England, the Fatal Accidents Act of 1846, otherwise known as Lord Campbell’s Act, abrogated the harsh common-law rule that a person’s right to bring a tort cause of action died with the person. Most American states, including Texas, later passed their own wrongful death statutes modelled after Lord Campbell’s Act.

Texas’ Wrongful Death Law

Two potential causes of action now arise out of the wrongful death of a person in Texas: a survival cause of action and a wrongful death cause of action. Section 71.021 of the Civil Practice and Remedies Code allows the heirs, legal representatives and estate of a decedent to bring a survival cause of action “for personal injury to the health, reputation or person of an injured person” following the person’s death, and the section provides that the cause of action “does not abate because of the death of the injured person.”

Essentially, this is the cause of action that the decedent would have been able to bring if he had survived. Section 71.004 allows the spouse, children and parents of the decedent to bring a wrongful death cause of action for their separate pecuniary losses, mental anguish, loss of companionship and society, loss of inheritance and exemplary damages.

In wrongful death cases, there are two statutes of limitations that may come into play. There is one for the decedent’s underlying claim and one for the claims of the wrongful death beneficiaries. Confusion in determining whether limitation has run at the time of someone’s death arises because

“accrual” of the wrongful death cause of action does not necessarily begin on the date of the person’s death, and the running of limitations on the decedent’s underlying claims may bar the beneficiaries’ claims.

The date of accrual is simply the date when the plaintiff is first allowed to file suit and limitations first begins to run.

Section 16.003(b) of the Civil Practice and Remedies Code provides that a wrongful death cause of action “accrues on the death of the injured person,” but the interpreting case law may dictate an accrual date earlier than the date of death. In RUSSELL in 1992, the Texas Supreme Court confronted the issue of whether the decedent’s statutory beneficiaries are barred from filing wrongful death claims if the decedent’s underlying claims were barred by limitations when the decedent died.

Texas Court Disagrees with RUSSELL

In RUSSELL , the decedent’s widow and children sued seven defendants five weeks after the decedent’s death, but after the running of the statute of limitations for the decedent’s underlying claims. The widow and children argued that limitations for their wrongful death claims had not yet run because of Section 16.003(b)’s provision that wrongful death causes of action accrue on the date of death.

The Texas Supreme Court disagreed, noting that a wrongful death cause of action is “wholly derivative of the decedent’s rights,” and courts had previously prohibited wrongful death causes of action when the decedent would have been prohibited from filing suit because of governmental immunity, interspousal immunity, a spouse’s contributory negligence, contributory negligence, absence of a cause of action for prenatal injury, the Texas Guest Statute, contractual limitation of liability, a release and a fellow servant’s negligence.

The court noted that although some of those defenses were no longer viable defenses, the general rule that a wrongful death cause of action is viable “only if the decedent could have maintained suit for his injuries immediately prior to his death” remained “unassailed.” The court also noted that Section 71.003(a) of the Civil Practice and Remedies Code allows a wrongful death claim “only if the individual injured would have been entitled to bring an action for the injury if he had lived.”

The Texas Supreme Court summarized its holding in Russell as follows: “If a wrongful death action exists, it accrues, not when the decedent was injured, but at his death, and the limitations period on that action begins to run at death. But if a wrongful death action does not exist because the decedent could not maintain an action in his own right immediately prior to his death, for whatever reason, then no wrongful death action ever accrues.”

The RUSSELL court rejected the argument that its holding penalized the families of those who die lingering deaths. The court reasoned that “a person whose injuries result in death is entitled, while he is alive, to sue and recover damages from those liable for his injuries.”

The court cautioned that adopting the plaintiffs’ position would “greatly relax the statute of limitations for death cases,” because it would allow suits to be filed within two years of death “even if the action which allegedly caused the death occurred five, ten, twenty or more years earlier.”

Post-RUSSELL Interpretations

Post-RUSSELL , a wrongful death cause of action exists when the decedent dies only if the decedent would have been entitled to bring a cause of action when he died. For example, if the decedent’s death arose from a car crash that occurred more than two years before his death and the decedent had not filed suit at the time of his death, limitations have run as to the underlying claim and the wrongful death beneficiaries are barred from filing suit.

But if the car crash occurred less than two years before the date of death or the decedent had filed suit within two years of the crash, the wrongful death cause of action accrues on the date of death, and the decedent’s beneficiaries have two full years from the date of death to file suit.

For most personal injury cases, the date of accrual begins on the date of death provided the tort that caused the death was not more than two years earlier and the decedent had not already filed suit. There are exceptions, however.

For healthcare liability claims, limitations are governed by the medical malpractice statute and wrongful claims may accrue on the date the negligence occurred, the date treatment was completed or the date hospitalization was completed. Asbestos- and silica-related claims also are governed by special accrual dates mandated by statute.

Another issue that can create confusion in determining limitations for wrongful death claims is tolling. Tolling provisions ensure that a disabled party is not prevented from filing suit by the running of limitations while the party is disabled.

Section 16.001 of the Civil Practice and Remedies Code tolls the running of limitations for plaintiffs under certain disabilities, but Texas courts consistently hold that the tolling provision of Section 16.001 tolls only the claims of wrongful death beneficiaries under a disability, and not the claims of decedents under a disability.

Courts have not been responsive to plaintiffs’ arguments that barring survival and wrongful death claims by the application of statutes of limitations violates the open-courts provision of the Texas Constitution. Courts consistently have held that the open-courts provision does not protect claims that plaintiffs had no right to assert under common law, such as survival and wrongful death claims.

Before the Texas Supreme Court’s decision in RUSSELL in 1992, there was some ambiguity about limitations in wrongful death cases. But it is now firmly established that a wrongful death cause of action exists when the decedent dies only if the decedent would have been entitled to bring a cause of action when he died.