What Happens if a Victim Dies After Filing a Claim?
Tue 17 Jan, 2023 / by Parker and Parker / Personal Injury
Someone who is injured has a right to bring a claim against the person who harmed them. Typically, they assert that the other person was negligent–that is, that the other person owed them a duty, breached that duty, and the breach caused the person harm. For instance, a storeowner has a duty to keep its entrance free from ice, as it is inviting people in to shop on the property. If the store owner fails to keep the sidewalk in front of the shop clear, and you slip and suffer injuries, then a court could find the store owner negligent.
An injured person can file a personal injury claim. A personal injury claim allows an individual to recover money for their injury, which is called damages. Damages apply to medical expenses, such as hospital stays, medications, and physical therapy.
Once in a while, a person will die before their claim is resolved. Things can become complicated, however, when the victim ends up dying after they file their claim. For example, suppose you suffered injuries as a result of a car accident, filed a claim against the person who ran into you, and then die later.
Does death cut off one’s ability to recover money in a personal injury claim? Read on to see what happens in these instances.
What Happens If I Die Before My Claim is Filed or Resolved?
Fortunately, your claim may still be able to be pursued. Illinois law does determine who can and when they can, pursue your claim.
Who Can File A Claim for Me?
Typically, your estate will be able to proceed with your claim. This means that as your representative after death, the executor of your estate could still recover damages. While the money would not go to you, that money would go to the estate.
Your personal representative or executor of your estate can take legal action. While it is best to appoint an executor of your estate before you die, you are not out of luck if you did not do so. In the event you did not name an executor or administrator, the court will appoint one on your behalf.
Your heirs can also bring a claim before you are able to do so due to death. For instance, suppose you die as a result of being dropped at a nursing home. Even though you are now deceased, your heirs could bring a wrongful death suit against the nursing home.
When Can They File A Claim for Me?
Illinois statute says that you have a two-year period to file this sort of lawsuit. An Illinois appeals court determined in 2015 that the two-year statute of limitations begins on the date of the wrongful death for both wrongful death and survival claims.
What Legislation Exists in Illinois to Bring a Claim on My Loved One’s Behalf After They Have Passed?
Illinois has two statutes that permit loved ones to bring claims for a deceased loved one after their demise. Family members can pursue claims under either of these statutes. These statues are different, however, and function differently.
About the Illinois Survival Act
The Illinois Survival Act permits a deceased individual’s estate to recover damages that a deceased person would have had if they had not passed away. The Act, in other words, allows the person who is deceased to bring a legal claim beyond death. To take advantage of the Illinois Survival Act, the decedent’s family must first establish an estate on behalf of their dead loved one.
About the Illinois Wrongful Death Act
This Act allows a decedent’s next of kin to sue a party for damages that were suffered by family members due to a loved one’s death if that death was caused by a wrongful act or neglect. These damages can include a variety of things like emotional support, household income, or loss of consortium (spouses).
What if the Death is the Defendant’s Fault?
Sometimes, a person who is injured dies right away. Other times, they pass away from the accident after a period of time. For example, a person may have suffered a traumatic brain injury as a result of a car accident and died a few weeks later from their injuries.
When things like this happen, a plaintiff can recover for the injuries that the defendant caused the plaintiff as well as the wrongful death. However, the court will have to determine that the death was a direct result of the defendant’s actions. For instance, if someone is rear-ended and dies from a heart attack three years afterward, a court would likely not find that the accident was the proximate cause of the heart attack and resultant death.
Plaintiff’s family could bring both a survival action and a wrongful death lawsuit. Money from the survival action would apply toward the injuries suffered before death, while the money from the wrongful death would go toward the survivors’ losses.
What if the Plaintiff Dies For Causes Unrelated to the Defendant’s Conduct?
Suppose a plaintiff slips and falls at a defendant’s grocery store. A month later, the plaintiff drowns in a pool. The defendant would not be responsible for the plaintiff’s demise in the pool, so the defendant would not be on the hook for a wrongful death lawsuit. However, the family could get compensation for losses that happened before the plaintiff’s death. Even though the plaintiff is now deceased, that does not erase the wrongfulness of the defendant’s prior conduct.
Pursuing a Claim After Death
These claims can be complex. It is difficult enough to deal with the grief of losing a loved one that many family members may drop a claim that a victim had pending. The victim is still owed that money and justice for their pain and suffering. While no amount of money or verdict can bring a loved one back, it can bring healing. A compassionate personal injury attorney can walk you through it.