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Filing a Claim Against a Deceased Defendant

Published on Sep 10, 2021 at 3:09 pm in Personal Injury.

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A personal injury claim is a legal means for those injured through another’s wrongdoing to seek justice and recover damages. We know that when a person has been hurt due to another person’s negligence, it is their right to take legal action against the party which caused harm. But what happens if the person who caused the injury dies?

It’s easy to imagine a scenario in which, for example, a storeowner fails to clean floor surfaces and a customer slips and breaks a bone as a result. In this case, the injured party (the plaintiff) files a personal injury claim against the negligent businessowner (the defendant). This process may seem straightforward, but, as in every aspect of our human-complicated lives, things can quickly become quite complex.

If we envision the same slip and fall scenario, how do things change if the aforementioned storeowner passes away before the injured customer has time to file a personal injury claim? Or what if the defendant dies during the process of litigation—how does the law make room for these dilemmas which are well within the realm of possibility?

This article will explore what happens when a defendant is deceased or dies during litigation and how the law handles these uncommon cases. Because of the density and involvedness of these types of legal cases, we are only able in this space to discuss the overarching issues at play in the action of filing a claim against a deceased defendant. If you find that this applies to your situation, get in touch with an experienced lawyer as soon as you are able. Our firm at Thomas Law Offices would be glad to sit down and discuss any questions you may have.

When a Defendant Is Deceased or Dies During Litigation

The state of Illinois does not recognize claims against dead people, but it does allow ones filed against their estates, under certain circumstances. The Illinois Code of Civil Procedure makes death of party provisions for cases in which an involved party dies. The law recognizes legal actions against individuals who are known to have died before the time limit for commencing legal procedures has expired, as well as cases in which the plaintiff learns of the defendant’s death during legal proceedings, as long as all terms and conditions are met.

These terms and conditions are minutely detailed and must be understood thoroughly by your lawyer for your case to be successful. For example, when a defendant dies or is deceased, it is required that certain steps be taken to appoint a court-recognized representative to stand in for the duration or remainder of litigation.

The Illinois Survival Act, part of the Illinois Probate Act, also allows lawsuits to be filed against the estate when a party has died, as long as it is done within state statutes of limitations. Some case types are not eligible to continue under the Illinois Survival Act when either the defendant or plaintiff dies; these include libel and slander, false imprisonment, malicious persecution, and invasion of privacy. Additionally, in cases in which the plaintiff dies, the Illinois Survival Act allows a deceased person’s estate to recover damages that would have been available had the deceased lived. However, this is different from a wrongful death claim, in which surviving family members file a claim against the negligent party which caused their loved one’s death.

Claims filed on behalf of a deceased plaintiff are much more common than claims filed against deceased defendants. It is in fact a rare case when the defendant in a personal injury case is deceased, or dies before the case has reached an outcome. In one of the most unusual cases of a Chicago personal injury claim filed against a deceased party, the estate of a man killed by a train while crossing Metra tracks was found liable in state appeals court after his severed body parts flew through the air, striking and injuring a bystander at the station.

More typical cases are ones in which the defendant dies due to injuries sustained in the accident which also harmed the plaintiff—often a motor vehicle accident. In some cases, the defendant simply dies of natural causes. Regardless of the cause of death, it is essential for the plaintiff and their lawyer to correctly identify the party which will be the living defendant in the place of the deceased. As we have seen, suing a dead person is not a legal option. And care must be taken to ensure that the correct actions are completed so the plaintiff is able to obtain the compensation needed to recover losses.

Illinois Civil Laws and Statutes of Limitation

Two issues are critical to a successful case outcome: timelines and proper legal protocol. Adhering to deadlines and regulations is all-important in personal injury cases, especially ones with added complexities such as a deceased defendant. Failure to do so can result in the dismissal of a personal injury case.

In another case example, a plaintiff injured in a car accident was unable to obtain compensation from the defendant who was killed in the same auto collision after it was ruled that she failed to use reasonable diligence to file a claim against the correct party. The plaintiff, who did not realize that the defendant had died shortly after the auto collision and directly sued the deceased rather than his estate, neglected to follow the proper protocol for appointing an executor within the time limits as Illinois law requires. This exemplifies why the expertise of a qualified personal injury lawyer is so necessary in cases as intricate as these.

In personal injury law, a plaintiff and their attorney must adhere to the time limits by which a claim needs to be filed. These limits are referred to as statutes of limitations. These vary from state to state. In most cases, the time is calculated from the date the plaintiff sustained the injury. For personal injuries in Illinois, the statute of limitations is generally two years. Other types of civil claims may have varying time limits, such as a five-year limit for injury to personal property or trespassing.

Furthermore, there are specified time limits pertinent to those unique cases in which the defendant is deceased. For example, the Illinois Code of Civil Procedure allows extensions beyond the time frame of a normal personal injury statute of limitations under certain conditions, such as when a plaintiff takes action to substitute the deceased individual’s personal representative as defendant in the case.

Know You Can Find Legal Expertise at Thomas Law Offices

Our clients have lots of questions about their personal injury claims, no matter how straightforward or complicated. That’s because the outcome of a personal injury claim has widespread and long-lasting impact on an injured person’s life. Emotional, physical, and financial stability often depend on an advantageous case result.

Unlike some attorneys, our lawyers at Thomas Law Offices encourage our clients to question us on our ability to handle tough cases like these. Through years of successful litigation, we have learned what it takes to win the difficult cases—a readiness to continually learn new information, look for answers where others don’t, and listen with intention to the true needs of our clients. Contact us today for more information or for a free discussion of your case.

Meet Your Team

Tad Thomas - Trial Lawyer

Tad Thomas

Managing Partner

Tad Thomas has dedicated his practice to representing plaintiffs in various types of civil litigation, including personal injury, business litigation, class actions, and multi-district litigation.

After graduating with his law degree in 2000 from Salmon P. Chase College of Law at Northern Kentucky University, Mr. Thomas immediately opened his own private practice and began representing injury victims.

In 2011, Thomas Law Offices was established in Louisville, Kentucky. Over the past decade, Mr. Thomas has expanded his firm and now has offices in three additional locations: Cincinnati, Ohio, Columbia, Missouri, and Chicago, Illinois. He is also a frequent lecturer on topics like trial skills and ethics and technology.

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