Today we look at the last part of our 6 part series on wrongful death. We sincerely hope that you have…
It happens in a split second, changing your world forever: an accident that takes the life of a loved one. Your family is grieving, devastated, in shock, unsure how to proceed, where to go and what to do. In addition to your emotional loss, you are also worried about the uncertainty of your financial future.
Contacting a wrongful death lawyer for advice often seems wrong. You don’t want money for your loss. You just want your loved on back. Still, you must protect yourself and your family. So the decision you make to seek legal assistance from the right attorney is one of the most important actions you can take.
If you are in this position, please know how sorry we are for your loss. As part of our job we have counseled hundreds of families experiencing the same loss you are facing. That’s why we have prepared this article. It provides answers to the questions we are most commonly asked by grieving families.
- What is Wrongful Death and/or a Wrongful Death Lawsuit?
Wrongful death is a life lost due to the negligence or willful actions of someone else.
Although state laws vary in specifics, every state offers means of legal recourse for the survivors. California allows for the immediate family and heirs of a wrongful death victim to seek recompense for their losses.
The reason for contacting a wrongful death lawyer is because they are experienced in determining liability (blame), filing a lawsuit with the courts and fighting for the damages you are due. Wrongful death attorneys in California are familiar with the state’s specific statutes. They also know how to negotiate with insurance companies when necessary to obtain fair settlements for their clients.
- Wrongful Death Determination: Do You Have a Case?
Who can sue for wrongful death?
Family members or a designated representative for the decedent’s family can file a civil suit in California to recover monetary damages. Even if a criminal case resulting from the death is already underway, that does not prevent civil action, nor does the determination in a criminal case affect the outcome of the civil wrongful death case.
You have a legal right to sue if you are:
- The spouse of the decedent
- The child or stepchild of the decedent
- A person who suffers losses resulting from the wrongful death
- An heir to the estate
Who do you sue?
A viable wrongful death case must meet several criteria:
- The death must be the result of another party’s willful act or failure to act
- The responsible party must have had a duty of care toward the decedent
- The moving party must be an immediate relative, financial dependent or a representative of a person directly affected by a wrongful death
- The person, people, or entities responsible must be identifiable
- The plaintiff(s) must prove direct losses from the death
Establishing the liability (blame) of the other party can often be a huge challenge. Based on the facts of the case and the testimony of witnesses, the plaintiff’s attorney must demonstrate that the death directly resulted from negligence or intentional actions.
For example, if the other driver ran a red light and hit your relative’s car, causing her death, that driver would likely be liable. Disobeying traffic signals is either intentional or negligent. In contrast, if two cars collided in the fog due to low visibility, it is possible that neither driver would be more liable than the other.
Liability is not restricted to individuals, as your wrongful death attorney can explain. The liable party may be a municipal government or a manufacturer as well.
Often, it will be an insurance company that pays the damages. Insurance companies typically offer you a settlement before going to court to avoid the time and expense of a courtroom case. However, the settlement is not always in your best interests. Make sure your wrongful death lawyer has the knowledge to advise you in such situations and is not afraid to fight for you in court.
In other cases, the individual or organization liable for your loved one’s death must pay out of pocket in compliance with a court order. The compensation may include payment for the legal fees involved in the case. Typically, wrongful death lawyers do not charge you for their services unless they win a damage award for you. Their fee may be a percentage of that award.
- Why Hire an Attorney?
Unless you have a strong legal background and a clear head in the aftermath of a tragedy, hiring an attorney is your best option for recovering damage compensation. Only an experienced attorney who maintains objectivity can make sure that you make the strongest case possible.
Additional reasons to retain legal assistance before you decide to represent yourself include:
- Preservation of evidence at the scene: Unless the police officers investigate the scene as a possible criminal case, someone needs to see that important evidence does not get lost. Your attorney has the resources and personnel to take care of evidence preservation while you deal with the aftermath of the wrongful death.
- Locating and interviewing witnesses: Witness testimony could be critical to recovering damages. An attorney can locate witnesses to the accident and extract the information that will support your case.
- Dealing with insurance companies: An attorney will represent your best interests in dealing with insurance companies anxious to settle quickly. With wisdom gleaned from experience with wrongful death cases, the attorney is a good judge whether a settlement will cover your current and future losses.
- Meeting the deadlines set by state statutes and the court: Your local jurisdiction and the state of California mandate specific periods in which you can file your wrongful death claim, prepare your case and appear before a judge. Typically after the sudden death of a loved one, sticking to such a schedule is the farthest thing from your thoughts. Wrongful death lawyers have the experience and legal acumen to ensure that your lawsuit progresses according to the prescribed timeline.
- The stakes are high for you and your family: The loss of a loved one is not only difficult to deal with emotionally but also a potential financial nightmare. Initially, you may be facing costly medical and funeral expenses for which you are unprepared. In time ahead, you and your family may suffer from the loss of the decedent’s income, mental health issues stemming from the wrongful death that causes loss of income and other related expenses you have not even imagined yet. Hiring an attorney with experience in calculating these losses is by far the best approach to secure your economic future.
- Objectivity: The aftermath of a wrongful death is fraught with intense emotions. While this is natural, it is not conducive to effective action in a court of law. A wrongful death attorney provides the objectivity that is essential to building a presenting the strongest case possible. Your lawyer has the keen focus and clear-headedness that is typically lacking in friends and relatives of the deceased.
- Negotiation skills: Data compiled by the Bureau of Justice Statistics show that the majority of wrongful death claims never make it to a court of law. Instead, the plaintiff accepts a settlement or the case is closed with no damages ordered. You need a skilled negotiator in your corner to produce a good outcome when working with insurance representatives or attorneys for the liable party. From understanding the nuances of the negotiation from a legal perspective to working objectively in confrontational situations, a skilled attorney is best qualified to fight for your just compensation.
- Why Sue For Wrongful Death?
When a close family member dies without warning, the physical, emotional and economic strain to loved ones left behind can be overwhelming. You find yourself making decisions you never expected, and the costs mount quickly.
Funeral expenses alone can add up quickly. Typical costs include the casket, ranging from $2,000 to $10,000, a burial plot or ashes niche, funeral home services, the cost of flowers, music and an officiant for the service, plus the cost of food and drink at a reception afterward.
Depending on the circumstances of your loved one’s death, you may be responsible for ambulance charges and emergency room services. Also, there could be intensive care costs, physicians’ fees, transportation fees and more.
Once you have put your loved one to rest, you face many unanticipated financial demands. For example, if the decedent provided you or other family members with health coverage through the workplace, you will have to begin paying for it yourself, possibly at a higher premium. If the victim contributed financially to your mortgage payment and monthly bills, you must find a way to cover them without that income now and into the future.
If you were injured in the same accident in which the death occurred, you might also suffer a temporary loss of income as you heal. Your medical expenses place an even greater burden on your shoulders.
If you have lost a family member who contributed to the daily running and maintenance of your household, you will likely have to pay for someone to take over those duties. Perhaps the decedent cared for your yard and garden. Maybe she did all the cooking for the family or cared for your small children. Hiring someone to do these tasks can be expensive, further straining your budget.
Finally, California wrongful death statutes allow you to seek compensation for loss of companionship, guidance, and love. While these can never be accurately translated into dollars and cents, your attorney will obtain the compensation allowed by law.
For all of these reasons, you should not hesitate to retain attorney services and file a wrongful death lawsuit. When someone else causes such financial and emotional hardships, they should foot your bills. Otherwise, you and your family will continue to suffer economically far into the future.
Something else to consider in making the decision to sue is whether the party who is liable is likely to hurt others in the same way. For instance, if a defective product caused wrongful death, the manufacturer may continue to sell that product if no one speaks up. If a dangerous blind curve on a city street caused a fatal accident, city officials might not admit it is a significant problem unless somebody sues.
Your priority will naturally be the best interest of your family, but the well being of others may also be at risk. If in doubt, call a wrongful death attorney for advice.
- When, Where and How Do You File a Wrongful Death Lawsuit?
Normally, you have two years from the date of your loved one’s death to file a wrongful death action in California civil court against a no-governmental entity. In cases against governmental entities, you typically must file a wrongful death action within one year. If you fail to file your lawsuit by this deadline, you will lose your right to file at all.
The first action an attorney will take as your advocate in a wrongful death case is touching base with everyone involved in the accident. Both those who were there at the time and those who became aware of the situation after it occurred may be able to shed light on the facts, timeline and aftermath of the incident. Facts like these will form the basis for your case.
Your legal expert will likely speak with the defendant’s insurance agent or another representative to learn what, if anything, is on offer regarding a settlement. Your lawyer has the necessary experience in negotiations to advise you in your dealings with insurers, defendants, and corporate lawyers.
Before preparing the paperwork for your suit, you and your lawyer must sit down and decide the amount and type of damages you will seek. Although California statutes place no cap on damages in wrongful death cases, you should aim for a balance between protecting your family’s economic future and making your requests just and reasonable.
Filing the lawsuit
If the initial settlement offer is not adequate, your attorney’s next step is filing the required paperwork for your lawsuit. This filing consists of a summons and a complaint. The summons notifies the defendant that you have filed. The complaint details the incident, the defendant’s negligence or willful actions that caused the death, the damages you seek and why the defendant should pay them.
After you have approved and signed the summons and complaint, your lawyer will file them with the court and see that a process server delivers copies into the defendant’s hands. The defendant must respond within a specific time period. The response can take one of two forms: an answer to the complaint or a motion for dismissal of your lawsuit.
The judge must give any motion for dismissal due consideration before making a determination. If your complaint is strong and supported by facts, you have a better chance of getting your day in court.
Your case moves forward into a phase known as discovery. Discovery is the period when each side examines the other’s evidence. Typical means of obtaining this evidence include:
- A written questionnaire, called an interrogatory
- Formal requests for documents
- Requests for admissions in the form of “true/false” answers
- Depositions, or verbal questioning of witnesses recorded for the record
- Request for the production of evidence
Opposing parties in a legal dispute do not always wish to produce certain documents, witnesses or physical evidence. When this happens, the one making the request must file a “motion to compel,” which asks the judge to order the reluctant party to hand over the evidence.
Motion for summary judgment
If the defense files a motion for summary judgment following discovery, it may be implying that you do not have enough evidence to make your case. Such a motion might also be filed to get the judge’s ruling on matters of law, resolving them before the jury enters the equation. In some cases, the defense may use the motion as a tactical move designed to preclude or reduce your compensation.
Before your case goes to court, the parties involved typically meet with a legal negotiator for a settlement conference. This meeting is either mandated by the judge assigned to your case or requested by one of the parties to the lawsuit. During this conference, the mediator will review the aspects of the case and make suggestions for an equitable settlement. If your case is well-prepared and documented, the terms of the settlement are likely to be in line with what you are asking.
However, sometimes an insurance company employs stalling tactics designed to get you to accept less than you are asking. The firm may gamble that you are desperate for funds to pay the bills the death has already generated. It may also assume that you are not entirely prepared to see the matter through a long court battle.
When it comes to negotiating a settlement, legal representation is invaluable. Your lawyer must prepare a brief summing up your case, and your damages request to submit before the conference. As the meeting progresses, a lawyer with experience in such situations can evaluate the settlement offer, the mediator’s reasoning and the strategies of the defense. Your attorney will advise you accordingly.
Although most wrongful death cases are resolved by settlement before going to court, you do not have to settle. If you and your attorney agree that the offer is unacceptable, a jury will resolve the matter in court.
Several factors help determine how long a wrongful death lawsuit will take:
- The complexity of the case
- Your willingness to accept settlement
- The defendant’s willingness to settle
- The civil court caseload and trial schedule
Sometimes, the key parties in a wrongful death action settle right away. Sometimes, you will accept a later settlement, after weeks or months of negotiation. If your case goes to court, you are probably facing a considerably longer timeframe, perhaps years.
- What Determines Liability and Damages in Wrongful Death Cases?
The primary mandate of a wrongful death lawsuit is to show the defendant is specifically liable for the death. You and your attorney must prove:
- Duty of care: The defendant was responsible for taking care during the activity that led to the death. For example, a motorist has a duty to obey all traffic rules.
- Failure to carry out duty of care: The defendant did not take proper care. For example, a driver running a stoplight.
- Direct causation: By breaching the duty of care, the defendant caused the death. The running of the red light precipitated a fatal accident.
You must prove these allegations with evidence, witness testimony and, sometimes, expert opinion. As the plaintiff in the lawsuit, your side has the burden of proof.
Your attorney bases some of your damages on the bills you have already received related to your loved one’s demise. However, it is more difficult to accurately calculate future damages you will suffer as a result of the wrongful death. Some things to consider include:
- The value of lost future earnings based on current economic values, taking inflation and other financial variables into account
- The probable life expectancy/earning potential of the decedent
- The future value of retirement funds or pensions if the decedent had survived
- The cost of replacing goods and services the decedent provided, such as home maintenance, auto maintenance, childcare, garden care, or financial management
- The value of the loss of such intangibles as companionship, love, parental guidance, and emotional support
If you are an heir or executor of the decedent’s estate, some of the damages you seek might include:
- Loss of the income that the decedent would have earned at the average life expectancy, minus the average cost of living during that time
- Total losses of all beneficiaries of the estate due to the untimely death
Calculating damages can be very complex, calling for the help of financial professionals. Your wrongful death attorney can suggest appropriate resources.
Several factors influence the amount of compensation you can receive in a wrongful death case:
- The number of claimants/dependents involved in the lawsuit
- The jury’s assessment of the deceased’s earning potential and responsibilities
- Whether the jury is sympathetic to your claim
- Whether the jury finds the defendant likeable or respectable
- The amount of insurance coverage available to pay the claim
- The location of your case, whether rural or urban
- The skill of your attorney
The average award for these plaintiffs was $400,000. Plaintiffs won between 54 and 68 percent of civil tort trials in 2005, and the average compensation was between $24,000 and $30,000.
Who receives compensation and how it is paid?
In California courts, compensation for wrongful death typically goes to the spouse and children of the decedent. If a representative of the estate brings the action, the proceeds will be divided among the decedent’s heirs once out-of-pocket expenses are paid. Your attorney will receive a percentage of the damages if that is the agreement you made.
Your judge may specify time limits for the payment of your claim in the official court order documents. If an insurance firm is responsible for payment, you can expect to receive the money within that time frame. If the defendant is responsible for paying a portion of the compensation, you may have to take further legal action to compel the defendant to pay.
Once you receive your award, it is up to you to dispense the funds wisely. In general, any compensatory money you receive from a wrongful death lawsuit does not count as part of your taxable income, according to 104(a) of the Internal Revenue Code, unless specifically identified as compensation for the loss of earnings. It is always a good idea, however, to verify your tax liability with your accountant.
Once again, if you found this blog article because you are currently grieving the loss of a loved one, we want you to know how sorry we are for your loss. It is our hope and prayer that you are experiencing extra love, support and understanding from everyone around you. You do not need any extra stress or pain in your life right now. That’s why it is our sincere hope that this article has helped you, even in some small way, by providing timely answers to your questions.
Should you decide to pursue legal action, we hope this article helps you know how to choose the best legal representation for your wrongful death action so you fully obtain just compensation for your losses. Your attorney should have a proven record of success in such cases as well as a strong background in liability litigation.
About the author:
Rizio Law Firm has an established history of providing committed and compassionate legal representation for the families of wrongful death victims in Southern California. The attorneys at Rizio Law have earned a solid reputation for success. Call them at 888-292-8888 to schedule a free initial consultation, or fill out the contact form today.