Montana residents may know that any civil action must be filed within a specified time period. This time period is referred to as a statute of limitation. When this period runs out, you lose the right to file a claim. Each state, including Montana, has its own statute of limitations regarding filing of wrongful death claims. In some states, the period extends only for a year, while in others, they may extend to two years, or even more.
One of the keys to understanding a statute of limitations is knowing when the time period begins. So what is the discovery rule in wrongful death actions? It begins when the party discovers the cause of a wrongful death. In some states, any person has the right to bring about a wrongful death claim. The courts in these states have held that the time a wrongful death suit begins is at the death of the person.
The statute of limitations will be considered in a wrongful death suit unless the application of a time period would destroy evidence in the wrongful death claim. A rule known as discovery rule is applied in order to determine if the decedent knew about his or her injury that caused their death. If that is the case, then the limitation period starts before the person's death.
There are also some special considerations such as when a wrongful death suit arises out of a derivative action. The wrongful death suit becomes time-barred in cases when the decedent could not file a personal injury case at the time he or she died. In many states, wrongful death suits are based on product liability suits. Again, there are limitation periods that start with the death of the person.
If a person has run out of time, then he or she can extend the time limit. That can be waived by the court or by the opposite party with a process known as tolling the statute of limitations.