Updated: February 1, 2024
The majority of prospective clients are unfamiliar with wrongful death lawsuits and how they are litigated. Typically, a wrongful death claim is asserted by the surviving family member when someone dies due to the negligent or intentional conduct of another party. The family members bring the legal claim on behalf of the decedent’s estate.
Wrongful death statutes are different in every U.S. jurisdiction. The surviving family members often elect a personal representative to bring the claims asserted by the estate. Oftentimes it can be too emotionally overwhelming for certain family members to act as the personal representative in a wrongful death case.
The Statute of Limitations and Wrongful Death Claims
Wrongful death claims are often associated with personal injury cases in which the injured victim dies due to their injuries. An injured victim may die if they are intentionally killed by another party. A civil lawsuit is permissible when a victim dies due to the criminal conduct of the defendant. However, a civil lawsuit will be distinct from any criminal case.
The statute of limitations for wrongful death claims in California is two years from the date of the decedent’s death. If the plaintiff fails to file their legal claim within the statute of limitations period then the injured party will forfeit their right to seek financial compensation.
Oftentimes an automobile accident victim will succumb to their injuries and die at the accident scene or in the hospital. If the other party responsible for causing the accident is negligent, then the surviving family members can bring a wrongful death lawsuit against the negligent driver.
Many wrongful death claims arise out of medical malpractice. A physician may not diagnose a medical problem or not provide the patient with the proper medical care. Under these circumstances, the surviving family members may file a wrongful death claim against the doctor and the hospital who employed the doctor.
Most personal injury cases do not result in death. In some circumstances it may be necessary to speak to a workers’ compensation attorney if a party died during the course and scope of their employment.
The Most Common Parties Who Assert Wrongful Death Claims
It is possible for a wide range of individuals to assert a wrongful death claim. Sometimes an attorney will consult with the family members to determine which individual should be the named personal representative in a wrongful death case. The following are some of the most common personal representatives in wrongful death cases:
- Any party who qualifies under the intestacy laws of the State of California
- Minor children who relied on the decedent for at least fifty percent of their financial support
- Grandchildren
- Children
- Domestic partners
- Spouses
Code of Civil Procedure 377.60 is the statute which enables surviving family members to assert wrongful death claims. Speaking with a knowledgeable personal injury attorney is the best way to determine if you have the right to bring a wrongful death claim.
Establishing the Elements of a Wrongful Death Claim
The party asserting the wrongful death claim can have a profound effect on the case. A wrongful death claim may be filed by a personal injury attorney acting as a personal representative of the decedent. Also, the wrongful death claim will be brought on behalf of the decedent’s surviving family members. The individuals named as survivors will be different depending on which jurisdiction oversees the wrongful death claim.
Typically, general damages and special damages are available in wrongful death cases. The following are some common examples of damages claimed in wrongful death cases:
- Loss of consortium
- Loss of companionship
- of care, guidance, and nurturing that the decedent would have provided
- Loss of inheritance
- Loss of the decedent’s income
- Funeral expenses
- Burial costs
- Medical bills associated with pre-death medical treatment
- The pain and suffering experienced by the decedent
This is not an exhaustive list of damages claimed in wrongful death lawsuits. Each wrongful death case is unique, and therefore it is important to speak with an experienced attorney who can help you determine which types of damages may be claimed in a particular wrongful death case.
Sometimes a wrongful death case will proceed to trial if it does not settle. If a case does go to trial it can be difficult for family members to deal with the publicity of a jury trial. However, approximately 95% of all civil cases settle, and it is therefore unlikely that the case you are involved in will go to trial. However, it is important to ask a wrongful death attorney about the probability that your case could go to trial.
Settlements in Wrongful Death Cases
The individual or business entity who is found to be responsible for the decedent’s death will typically possess liability insurance coverage. Therefore, the insurance company will deposit the settlement funds into the attorney’s trust account. Insurance companies typically have individual policy limits which apply to every policy, and this affects settlement negotiations in wrongful death cases.
A party found to be liable for the death of a victim in a wrongful death case will be personally responsible for the settlement amount if they do not possess liability insurance. Sometimes the liable party will have to pay the legal fees associated with the case.
In cases in which the defendant acts maliciously or wantonly the plaintiff may be entitled to punitive damages. These are distinct from general damages and special damages. Punitive damages are designed to punish the defendant and to deter the defendant from committing the same egregious conduct in the future. Oftentimes the parties will spend a considerable amount of time litigating issues related to punitive damages.
Preserving Evidence in Wrongful Death Cases
Different types of evidence will be important to a wrongful death case. The decedent may have family photographs or written documents memorializing the importance of specific family relationships. These items of evidence will be crucial for claiming general damages in a wrongful death case.
Surviving family members often want to post images and videos related to the wrongful death case. However, you should refrain from posting anything about the wrongful death case on your social media profiles. The defense attorneys in a wrongful death case will analyze the social media profiles of surviving family members. Therefore, you do not want to post anything which may potentially damage the wrongful death case. After the case is resolved you can go back to using social media without worrying about the effects your posts will have on the wrongful death case.
