Can a Complaint Be Filed for Personal Injury if the Plaintiff Dies Prior to Filing the Lawsuit?
Docket No.: A-2181-19T1
Decided August 13, 2020
Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark.
In a recent published decision, the Appellate Division considered whether a complaint filed for personal injury could be amended by the estate although the plaintiff originally bringing the complaint had died prior the lawsuit being filed.
In Repko, Plaintiff, fell on the front steps of Lourdes, fracturing her nose and receiving a cut over her eye and several other injuries. Three days later she retained counsel to file suit on her behalf. The Plaintiff died due to unrelated causes, fifteen months after her fall. Plaintiff’s counsel filed suit in Plaintiff’s name after her passing. Plaintiff’s counsel was not aware that she had died until counsel searched public records a year later.
Counsel attempted to amend the complaint to allow Plaintiff’s estate to continue the case. This attempt was made after the statute of limitations expired. Normally equitable tolling would allow the estate to continue the matter after a plaintiff dies after filing suit. Here, however, Plaintiff had died prior to the suit being filed. Because Plaintiff died prior to the lawsuit being filed, the original complaint was a nullity, and could not be amended, nor could equitable tolling relate back to the original date of filing within the statute of limitations.
This case is important for all personal injury plaintiffs. It is an unfortunate fact of life that everyone dies at some point, and often times it can be unexpected. If you are injured as a result of personal injury, it is important to have an experienced attorney bring a claim on your behalf sooner rather than waiting until close to the expiration of the statute of limitations. In the event that the plaintiff passes away, the suit can be continued if it were filed prior to their death, and in the event that it was not filed, the statute of limitations would still allow time for the estate to file if the plaintiff and attorney acted diligently.
If you or someone you know has been injured in a slip and fall, motor vehicle accident, truck crash, wrongful death, or other premises related injury, you need to make sure you contact a personal injury attorney with experience today. Failing to consider these issues could result in your case be dismissed permanently. Do not hesitate to contact Hark & Hark today to discuss your personal injury.
For personal injury matters, you pay nothing upfront, and our fee is paid as a percentage of your recovery. At Hark & Hark, we represent clients in all towns in New Jersey, including Audubon, Gloucester City, Oaklyn, Audubon Park, Gloucester Township, Pennsauken, Barrington, Haddon Heights, Pine Hill, Bellmawr, Haddon Township, Pine Valley, Berlin Borough, Haddonfield, Runnemede, Berlin Township, Hi-Nella, Somerdale, Brooklawn, Laurel Springs, Stratford, Camden, Lawnside, Voorhees, Cherry Hill, Lindenwold, Waterford, Chesilhurst, Magnolia, Winslow, Clementon, Merchantville, Woodlynne, Collingswood, Mt. Ephraim, and Gibbsboro.