WRONGFUL DEATH

FREQUENTLY ASKED QUESTIONS

What is a wrongful death case?

A wrongful death case is when a person dies as a result of the negligent or intentional act of another. This may be a death caused by any type of wrongdoing including accidents, malpractice, or murder.

Who can sue for a wrongful death?

Only certain survivors may file a lawsuit for a wrongful death. If the decedent was married at the time of death, the spouse can bring a lawsuit. Also, any children of the descendent may also bring a lawsuit for wrongful death.

If the decedent was married with no children, then the decedent’s parents are also allowed to bring a lawsuit. If the decedent has no surviving children or parents, then any brother or sister siblings of the decedent may file a wrongful death action.

If the decedent is a young child, then the child’s parents may file a wrongful death action.

What if the decedent survived for a period of time after the incident before the death?

This is known as a survival action.  A wrongful death lawsuit usually also includes a survival action. 

Whereas, a wrongful death lawsuit compensates the survivors for their losses, a survival action compensates the estate for the losses suffered by the decedent prior to death. Essentially, pursuant to law the right to sue for damages “survives” the decedent’s death and passes on to the survivors. 

A “survival” cause of action compensates the estate for losses suffered by the decedent prior to death. The estate is only entitled to recover the economic losses incurred by the decedent as a result of the incident, but is not entitled to recover for the decedent’s pain, suffering and emotional distress. There are no general damages awarded in a survival action. An exception to this rule is if the decedent was a victim of elder abuse in which case damages for pain, suffering and emotional distress are recoverable.

The common economic damages in a survival action include: medical bills, lost wages, and personal property damage.

In addition, the estate in a survival action is entitled to recover punitive damages to punish and deter the wrongful conduct. Punitive damages are not recoverable in a wrongful death case.

When must a wrongful death or survival action be brought?

Each state has their own statute of limitations for each legal cause of action.

In California, a wrongful death action must be filed within two years of the date of the decedent’s death; a survival action must be filed within six months of the date of the decedent’s death.

What if one or more of the survivors decide not to bring a wrongful death case?

The law requires that all of the claimants must be joined in one case to recover for the wrongful death of a decedent. But the court allows for the survivors who do not want to pursue the case to opt out. Those claimants who want to opt out must give assurances to the defendants that they are signing away their legal rights.

What if the decedent was partially at fault in causing the death?

Each state has their own laws concerning comparative fault and contributory negligence.

California is a comparative fault state. If the decedent was partially at fault for causing the incident, the heirs can still file a lawsuit against any other person or entity that was also at fault. But, the monetary amount of damages that the heirs can recover is limited by the percentage of the decedent’s fault.

What are the economic damages that the survivors can recover in a wrongful death case?

The amount of economic damages that the survivors can recover is the monetary value they would have received from the decedent. That is, the survivors are entitled to the value of future monetary contributions that they would receive from the decedent and the value of any personal service, advice or training that they would have received from the decedent if the decedent survived. This is determined by the amount of money the decedent would have earned but for their death.

Are the survivors entitled to recover damages for their emotional distress?

The amount of economic damages that the survivors can recover is the monetary value they would have received from the decedent. That is, the survivors are entitled to the value of future monetary contributions that they would receive from the decedent and the value of any personal service, advice or training that they would have received from the decedent if the decedent survived. This is determined by the amount of money the decedent would have earned but for their death.

How are damages divided if there is more than one heir?

After a trial, the jury will award one lump sum to the family. The judge will order a division of the verdict based on financial dependency and the relationships with the decedent.

If a settlement is reached, the heirs will decide how to divide the settlement amount. If a decision cannot be reached, the heirs can request the judge to assist. The heirs can also hire a mediator or arbitrator to help resolve the issue. To avoid this situation, the heirs may decide at the beginning of the case on how the proceeds will be divided.

Do I need an attorney to file a wrongful death case?

It is important to consult with an attorney so that you know your legal rights. Issues involving whether you have standing to bring a lawsuit, or whether there are insurance policies that may provide coverage for the loss, among many other legal issues, can be determined by consulting with an experienced attorney.

Can each heir hire a separate attorney?

Yes, each individual heir can retain their own separate attorney. Many times, this is necessary because there are competing interests amongst the heirs.

Will my wrongful death case settle without going to trial?

Realistically, 90% of wrongful death cases settle without going to trial. It is important to retain an experienced attorney in order to negotiate and litigate with the opposing parties.

Get the assistance of an experienced Wrongful Death Lawyer to help you with your case.

Wrongful Death cases require experience and a comprehensive understanding of the facts, procedures and the nuances of the law. If you have a loved one who has passed away due to someone else’s fault, you may be entitled to compensation. Speak with a Wrongful Death Lawyer near you. Contact The Sterling Firm as soon as possible! We offer a free initial consultation for wrongful death cases. We can help!

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