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Wrongful death claims allege, as their basis, that the deceased died
as a result of the negligence or liability of another. The deceased's
surviving relatives, dependents, or beneficiaries may bring suit against
those claimed to have been responsible, seeking monetary damages to
compensate for the losses. Each state has its own statute covering the
viability of claims for wrongful death, and not every state follows the
same guidelines, principles, or rules. A personal injury attorney in
your state can advise you on whether you have a valid wrongful death
claim and can help you pursue that claim to the best possible outcome.
Laws on Wrongful Death Resulting from Personal Injuries Vary from
State to State
Some states have "true" wrongful death acts in which the next of kin
are entitled to bring a cause of action in their own names as a result
of damages sustained following the decedent's death. Other states have
acts that are more properly called "survival acts," which preserve the
rights that vested in the decedent at the moment of death, expand those
rights to include the right of the survivors to bring a claim based on
the decedent's rights, and include claims for damages resulting from the
actual death itself. Finally, some states recognize both types of
lawsuits, but generally have a provision that limits the right of the
survivors in order to prevent a double recovery under the two different
theories.
Which individuals are entitled to bring a wrongful death claim also
depends on the jurisdiction in question. Generally, the primary
beneficiaries of the individual-often the spouse and children-are able
to bring a claim, and in some states the parents of the deceased may be
also designated as beneficiaries. In most states, if the deceased did
not leave behind any spouse, children, or parents, there is no one who
may bring a wrongful death claim, unless the scope of the state's
wrongful death act has been expanded to include other persons who were
dependent on the deceased. Sometimes, the recovery, if any, is simply
doled out to the deceased's heirs at law or is distributed to the
beneficiaries of the estate, as it would be in any normal probate
proceeding.
In most jurisdictions, in order to be legally liable, it is not
necessary that the defendant's conduct be the sole cause of the death.
Even when the defendant's negligence contributes in part, or in tandem
with other circumstances, to the decedent's death, liability may still
attach. Generally, a wrongful death cause of action can arise out of any
tort theory, including an intentional tort, reckless or negligent
behavior, or strict liability.
When a defendant is found legally liable for the death of another,
the types of damages that may be recovered can also vary greatly. For
example, the plaintiffs may be able to recover the costs of the
deceased's medical care and treatment related to the negligent conduct,
the funeral expenses incurred for the deceased's burial, the loss of
future earnings of the deceased, the value of the loss of the deceased's
benefits (such as pension benefits or medical and health insurance
coverage), the value of the loss of consortium, and general damages.
Additionally, in a few states, the plaintiffs may be able to recover
damages for pain and suffering or mental anguish that they experienced
as a result of the death, as well as punitive damages.
Conclusion
When a loved one dies, the complexities of a legal claim against the
wrongdoer can be overwhelming. At this already stressful and
emotion-laden time, the best course of action is to seek the guidance of
an experienced personal injury attorney with experience handling
wrongful death cases, who can guide surviving family members through the
complex legal maze and help secure compensation for their devastating
losses. The method and manner of calculating damages in a wrongful death
action can be very complex. This potential complexity is especially true
when trying to calculate the pecuniary loss to which the plaintiff's are
entitled. Pecuniary loss generally includes the survivor's loss of
support, contributions, and services due to the decedent's death. The
bases for computing these damages are the decedent's life expectancy and
work life expectancy. The life expectancy of the beneficiaries and,
where necessary, the remaining period of minority of any beneficiaries
must be considered. In calculating the value of the survivors' future
loss, not only may the wages of the decedent be considered but the court
may also consider the value of past contributions made by the decedent,
the decedent's familial concern, his personal habits, and his spending
behavior.
In cases where there is more than one beneficiary, the damages
recovered will be distributed between those beneficiaries. Most states
allocate the damages between the beneficiaries in accordance with their
losses. However, in some states the recovery is divided as spelled out
in statute, and in others divided according to normal intestacy laws
within the state.
A defendant is entitled, in general, to raise any defenses in a
wrongful death action that could have been raised in an action brought
directly by the decedent, had he or she not died. Therefore, if the
decedent was contributorily negligent in causing his or her own death,
the defendant may assert that defense in the wrongful death action.
Also, in most states, if the decedent had already recovered damages,
such as in a case where the death was not immediate and the decedent was
able to bring his own successful cause of action, the survivors may not
then successfully bring a wrongful death action and recover, in essence
again, for the same injury. There are limitations to this prohibition
and in some situations, the survivors may be entitled to commence and
maintain a claim.
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