Can anyone bring a wrongful death claim?
No. Generally, most states that recognize a wrongful death cause of action limit the pool of potential plaintiffs. Some states limit this group to the deceased's primary beneficiaries, defined as the surviving spouse and the deceased's children. Other states allow the parents of the deceased individual to bring a wrongful death claim. In addition to these individuals, some states recognize the rights of any dependent, whether closely related or not, to bring a wrongful death claim provided the person actually depended on the deceased for economic support. In those jurisdictions, it apparently makes little to no sense to allow the second cousin once removed of the deceased, who saw him once every five years at a family reunion, to recover for the loss of the deceased's future earning potential.
Some states require any recovery gained in a wrongful death action to be divided amongst the deceased's heirs at law or to be distributed to the deceased's heirs at law as it would be in any normal probate proceeding. In these situations, distant relatives may receive some "trickle down" of damages, even though they were not financially dependent upon the deceased during his life.
If more than one plaintiff is entitled to recover, all plaintiffs will share in the award. The manner in which the award is divided can be confusing and will depend upon the laws in the particular jurisdiction where the matter is brought.
What if a person dies before bringing a personal injury lawsuit?
It depends on whether a person dies as a result of the injuries or from unrelated causes. If a person injured in an accident subsequently dies because of those injuries, that person's heirs may recover money through a lawsuit. Every state has a law permitting an action when someone causes the wrongful death of another. If a person with a personal injury claim dies from unrelated causes, the claim survives in most cases and may be brought by the executor or personal representative of the deceased person's estate.
What if an unborn fetus dies?
Many states require that a child be born alive in order for its death to be the subject of a wrongful death action, so the death of a fetus might not be actionable. An attorney can tell you what the precise law is in your state.
When someone dies, what is the difference between the civil and criminal cases that can be brought regarding the death?
A criminal case arises when the government seeks to punish an individual for an act that has been classified as a crime. A civil case, on the other hand, usually has to do with a dispute over the rights and duties that individuals and organizations legally owe to each other. The burden of proof is higher in a criminal case, and the penalty imposed is a criminal sanction such as imprisonment. In a civil case, the defendant will typically have a monetary judgment entered against him/her.
Are punitive damages recoverable in wrongful death actions?
In most states, a plaintiff may not recover punitive damages in a wrongful death action. There are some states, however, that do have specific statues that permit recovery of punitive damages.
Are all state laws the same regarding wrongful deaths?
No, there are many differences among different state wrongful death laws. Determining the state in which you can (and should) bring a wrongful death action is a very important decision, because some states do not allow certain types of damage awards and/or may have different statutes of limitation that establish the timeframe within which you must file suit.
Can I bring a wrongful death action if the deceased never held a job?
Yes, even if the decedent never held a job, he/she may have contributed in some other way to the family. A good example of such a case is an action for the wrongful death of a stay-at-home husband or wife who contributes services, guidance and nurturing of the family. These contributions are quantifiable as "pecuniary losses" in a wrongful death action.
Can someone sue for the pain and suffering of a decedent?
Yes, in addition to the wrongful death, a decedent's family may recover damages for the pain and suffering that the decedent endured prior to death.
Can I bring a wrongful death action based on the death of a child or an elderly person?
Yes, you can recover damages in a wrongful death cause of action for the death of either a child or an elderly person. For a variety of reasons, however, the damage awards for both classes of decedent are usually modest.
How much does an attorney charge in a wrongful death case?
In a wrongful death case, the attorney's fee is usually based upon a contingent fee. A contingent fee agreement is an alternative to an hourly attorney's fee agreement. Under a contingent fee agreement, there is no attorney's fee charged, if the injured person does not secure a recovery. The well accepted contingent fee in a personal injury claim is 33-1/3% of any recovery. However, there are special rules for minors. In wrongful death cases, the minor’s age at the time of injury will determine when suit must be filed. Consult our office for further details.
The Law Offices of Millon & Peskin will evaluate your case thoroughly, explore all potential sources of recovery and preserve your rights under the law. Contact us today for a free consultation at (800) 928-1831 or Email us at info@millonpeskin.com. You can also complete our Online Case Evaluation Form
DISCLAIMER: This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.
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