The loss of a loved one is difficult, no matter the circumstances. When the death of a family member is the result of a preventable event, grief is often combined with confusion, frustration, and anger. Many individuals want to rush into a wrongful death action to hold the party responsible for the death of their loved one liable for their actions. However, there are several things to consider before filing a wrongful death lawsuit.
5 Things to Consider Before Filing a Wrongful Death Lawsuit
- What is a Wrongful Death?
- Who Can File a Wrongful Death Lawsuit?
- Wrongful Death Statute of Limitations
- Choosing a Wrongful Death Lawyer
- Costs of Filing a Wrongful Death Lawsuit
If your loved one died because of the reckless, negligent, or deliberate acts of another party, you might be entitled to file a wrongful death lawsuit. Filing a lawsuit for wrongful death allows you to seek justice for your family, but also to recover compensation for damages related to the loss of your loved one.
Before you file a wrongful death claim, it’s important to examine the process in further detail.
1. What is a Wrongful Death?
A wrongful death occurs when a person dies because of the misconduct or negligence of another party. The conduct may be willful or unintentional. The key factor is that the death was a result of the other party’s actions, conduct, or behavior.
Wrongful death claims may arise from a variety of situations and incidents. In many cases, they are a result of a fatal injury sustained in an accident. Examples of incidents that may result in a wrongful death suit include:
- Car Accidents
- Motorcycle Accidents
- Slip and Fall Accidents / Premises Liability Claims
- Product Liability Claims
- Commercial Truck Accident
- Pedestrian Accident
- Medical Malpractice
- Bicycle Accident
- Defective Medical Devices
- Dangerous or Defective Drugs
- Nursing Home Abuse and Neglect
- DUI Accident
- Intentional Abuse or Violent Acts
The above list is not an exhaustive list of incidents that might result in a wrongful death lawsuit. Consulting with a wrongful death lawyer is the best way to determine if you have a valid claim related to your loved one’s death.
2. Who Can File a Wrongful Death Lawsuit?
The wrongful death beneficiaries may vary slightly depending on the laws in each state. However, most states prioritize the beneficiaries by how closely related the person is to the decedent. For instance, spouses and children typically have the first right to file a wrongful death claim. If the deceased did not have a surviving spouse, children, or grandchildren, the person’s parents and siblings would be the next in line to file a wrongful death suit.
If there are no surviving parents or siblings, other family members may have the right to file a claim. In addition, most states permit the executor of the decedent’s estate to file a wrongful death lawsuit. In some cases, only one wrongful death lawsuit may be filed. Therefore, it is important to determine who should be named in the lawsuit to maximize the compensation available to the family members. Some states require all dependents of the decedent to be named in the lawsuit. However, some states allow a decedent’s estate to file one action and the heirs to file another claim.
3. Wrongful Death Statute of Limitations
A statute of limitations is a deadline imposed by law for filing a lawsuit. Each state has enacted statutes of limitations for lawsuits filed in the state, including wrongful death lawsuits. The deadline for filing a wrongful death action could vary greatly. Because each state has enacted its own deadlines for filing lawsuits for wrongful death, it is best to contact a wrongful death lawyer as soon as possible to discuss the timing of a lawsuit.
4. Choosing a Wrongful Death Lawyer
When you are searching for an attorney to represent your family in a wrongful death suit, it is important to retain an experienced attorney who handles wrongful death cases on a regular basis. Wrongful death statutes are complex, and cases involving wrongful death claims can be difficult to litigate.
Your attorney plays a significant role in the success of your claim. Therefore, you want to hire an attorney who has extensive experience handling matters related to wrongful death, including investigating the circumstances leading to death, researching applicable laws and cases, working with expert witnesses, negotiating settlements, and trying cases in court.
You should also research your attorney online, read reviews, ask for referrals from trusted parties, and, check for complaints against the attorney. In addition, only hire a wrongful death attorney who makes you feel comfortable, will listen to your concerns, and answer all your questions about wrongful death claims.
5. Costs of Filing a Wrongful Death Lawsuit
The loss of a family member often places a financial hardship on the family. Therefore, many families do not have the funds to hire a wrongful death lawyer if they must pay a retainer fee or attorney’s fees. However, most attorneys accept cases involving wrongful death on a contingency-fee basis.
A contingency fee allows you to hire an attorney without paying a retainer fee. The attorney fee is only paid if you receive money for your claim. Your lawyer deducts the attorney fees from the proceeds of the settlement. The fee is based on a percentage of the total proceeds received for the claim. Also, the attorney deducts fees and costs before distributing the funds to you and your family.
Before hiring a wrongful death lawyer, you should make sure you understand the fee agreement, including the payment of any fees and costs if you do not receive compensation from the other party.
Frequently Asked Questions About Wrongful Death Lawsuits
In addition to the above considerations, you may have other questions about filing a wrongful death lawsuit. Below are answers to eight of the most frequently asked questions about wrongful death claims.
What Do You Have to Prove in a Wrongful Death Case?
The wrongful death laws vary slightly by state. However, there are basic legal elements that you must prove to be successful when suing for wrongful death. The basic elements of a wrongful death lawsuit are:
- Negligence or Intentional Acts — You must prove that the actions or behaviors of the party were negligent, reckless, or intentional.
- Breach of Duty — The party owed a duty of care to your loved one, and the party breached the duty of care through the party’s acts or behaviors.
- Causation — The party’s negligent or intentional acts or behaviors were a direct or proximate cause of your loved one’s death.
- Damages — You suffered damages because of the death of your loved one.
Depending on the circumstances involved in your case, you could be required to prove additional elements. An experienced wrongful death lawyer will evaluate your claim to determine the legal elements that must be proven to be successful in a wrongful death action.
What Damages are Available in a Wrongful Death Case?
The damages allowed in a wrongful death lawsuit vary slightly under state laws. However, most states allow family members to receive compensation for pecuniary damages such as funeral expenses, burial expenses, lost wages, and medical expenses from the date of injury until the date of death. In addition, family members may also be compensated for their loss of support, love, comfort, guidance, and companionship. A few states permit victims to receive compensation for pain and suffering damages if the decedent suffered before the death.
How Long Does It Take to Settle Wrongful Death Claims?
Most wrongful death claims are complex and require exhaustive investigations into the circumstances of the death. Because of the investigations, wrongful death claims can take more than a year to settle. If the claim is disputed and a lawsuit must be filed, a wrongful death claim could take several years to settle.
What is the Difference Between Personal Injury Claims and a Wrongful Death Claim?
A personal injury claim compensates a person who was injured by another person. The compensation for the claim is paid directly to the victim. A victim in a car accident might receive compensation for medical bills, lost wages, and other damages from the driver who caused the car accident by filing an injury claim.
A wrongful death claim is intended to compensate the dependents of a person who was killed because of the negligence or wrongdoing of another party. For example, a person may have suffered an injury in a motorcycle accident, but because this person died, the person’s heirs or decedent’s estate must file the wrongful death claim.
How are Damages for Wrongful Death Divided in the Case of Multiple Heirs?
If an heir incurred direct financial loss because of the death of a family member, such as payment of funeral expenses or medical expenses, those heirs typically receive reimbursement for those expenses from the settlement. The remaining compensation is divided between the heirs based on their relationship with the deceased person and their future economic loss based on the level of support the deceased person would have provided to the heir had the person lived. Specific state laws may also dictate how damages are divided among heirs. In some states, a spouse may be entitled to a large portion of the compensation in a wrongful death case. In other states, a spouse and children may share equally in the compensation received for the wrongful death claim.
What are the Different Categories of Damages in a Wrongful Death Case?
There are typically two types of categories of damages in a wrongful death lawsuit: financial damages and non-financial damages. Financial damages relate to the out-of-pocket losses related to the death of a family member. For example, the funeral expenses, medical expenses, and loss of financial support may be included in this category. Non-financial losses relate to the loss of companionship, love, support, guidance, and counsel that would have been provided to a person during the lifetime of the deceased.
Punitive damages, a special type of non-financial damage, may be awarded in certain cases in which the defendant’s actions were grossly negligent or willful and wanton. An award of punitive damages is intended to punish a defendant for grossly negligent conduct, such as drunk driving. Punitive damages are not a typical award of damages in most personal injury cases. The requirements for awarding punitive damages vary by state.
Are Wrongful Death Settlements Taxable Income?
While there are exceptions to every rule, wrongful death settlements are typically not considered taxable income. However, you may want to consult with a tax professional or CPA to confirm that you will not incur income taxes on a wrongful death settlement.
Can You File a Wrongful Death Case if the Defendant is Found Not Guilty?
A person may be charged with a crime when the person’s actions lead to the death of another person. However, a wrongful death lawsuit is a civil matter that is independent of any criminal case involving the defendant. The laws related to wrongful death cases are different from the laws related to criminal cases, including the burden of proof required to win the case.
It is possible for a defendant to be found not guilty in a criminal case, but to be found liable in a wrongful death lawsuit. However, the outcome of the criminal case could complicate the wrongful death case. An experienced wrongful death attorney can provide a detailed case review, including an analysis of the evidence needed to prove your claim.
How an Attorney Can Help with a Wrongful Death Claim
Wrongful death cases can be emotional, frustrating, and complicated. The rules for filing a wrongful death lawsuit can be difficult to understand. A wrongful death lawyer provides support, guidance, and legal advice throughout the process of pursuing a wrongful death claim. From determining who should bring the claim to identifying the liable parties, your attorney is a valuable resource in seeking justice for your loved one and your family.
Some wrongful death claims settle without the necessity of filing a lawsuit. However, if a lawsuit is required, your attorney prepares and files all required legal documents and then monitors the deadlines to ensure the case moves toward a conclusion efficiently and effectively.
An experienced lawyer can calculate the correct value of a wrongful death claim and negotiate with the other party for a fair and just settlement. If the other party refuses to negotiate in good faith, your lawyer prepares the case for trial and aggressively argues in court for your right to receive compensation for the losses sustained because of the other party’s wrongdoing.
If you have questions about wrongful death claims, contact Acadia Law Group online or by calling 1-800-653-4600 to request a free consultation with an experienced wrongful death lawyer.