A wrongful death action is a statutory right to sue a person or business responsible for causing a death. This statutory right is given to the surviving family members of a deceased. In order to bring a wrongful death action, a death must have been caused by the wrongful, negligent, careless, or reckless act of a person, company or municipality. The California Wrongful Death Statute was adopted so that the family members of a deceased can bring the legal action that the deceased would have brought, had death not occurred.
Frequently Asked Questions Regarding Wrongful Death Claims
What are the damages that can be recovered in a claim for Wrongful Death?
Under California law, a family suing for Wrongful Death may recover the following damages:
Each survivor may recover the value of lost support and services from the date of the decedent’s injury to her or his death, with interest, and future loss of support and services from the date of death and reduced to present value. In evaluating loss of support and services, the survivor’s relationship to the decedent, the amount of the decedent’s probable net income available for distribution to the particular survivor, and the replacement value of the decedent’s services to the survivor may be considered.
The surviving spouse may also recover for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury.
Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury.
Each parent of a deceased minor child may also recover for mental pain and suffering from the date of injury. Each parent of an adult child may also recover for mental pain and suffering if there are no other survivors.
Medical or funeral expenses due to the decedent’s injury or death may be recovered by a survivor who has paid them.
Who has the right and the responsibility to make the claims for a Wrongful Death?
In order to be certain that there is proper compensation for each survivor or beneficiary it is common for the governing statutes to provide that a particular category of person has this right and responsibility.
In California, the statutes require that the Personal Representative of the Estate of the deceased bring any claim and assure that the interests of each survivor are protected. The Personal Representative is frequently a spouse, parent or child of the deceased.
In situations where no Estate is needed for probate purposes it is still necessary to open an Estate to accomplish the appointment of a Personal Representative.
Who should start the investigation of a potential Wrongful Death claim?
Any person who believes he or she may be a survivor or beneficiary entitled to compensation because of a wrongful death would have the right to consider starting the investigation of a potential claim. Sometimes the most logical person to investigate or start a claim, such as a widow, is not willing or able to look into the matter. In such a situation, any survivor or beneficiary should contact an attorney experienced in handling serious injury or wrongful death claims. The attorney can ascertain whether the claim would have merit and what categories of compensation would be permitted under the law. He or she would also be able to determine who should be appointed as Personal Representative of the Estate of the deceased if the Estate has not been previously opened.
Are there any unique issues that arise concerning a claim for Wrongful Death?
Yes, there are many unique issues to confront in a claim for a Wrongful Death.
First, it is obviously necessary to prove that the death was caused by the misconduct of another person or company. This can be complicated at times when other potential causes are present. An example would be the seriously ill person who is given improper medication in the hospital. In that circumstance, the defense often argues that the death was really just the natural progression of the underlying disease or condition.
Second, it is always necessary to prove the life expectancy of the deceased in order to determine what the future losses would be. This is not a major problem when the deceased was in perfect health at the time of the misconduct. But, it becomes complicated when the deceased had a life-threatening or life-shortening disease or condition.
Third, it is likewise necessary to prove the life expectancy of each survivor or beneficiary. After all, the future relationship would only have existed during the period of the predicted joint life expectancy of the deceased and the survivor.
Fourth, the nature of the relationship between the deceased and the survivor, in all of its relevant aspects, must be fully developed and presented. Sometimes the relationship is almost storybook perfect and sometimes it is quite different. In either event, it needs to be understood and documented in order to support the individual claim of the survivor.
Fifth, much of the true loss in a wrongful death claim is non-economic or emotional in nature. This requires special skills and care in the development of the proof and in its presentation. It is a matter quite different from just permitting an injured person to describe his or her back pain.
Sixth, it is mandatory that each of the survivor’s claims be developed and presented fairly without favoring or appearing to favor one survivor over another. This is especially true in those situations where, for example, the widow is the Personal Representative of the Estate of the deceased with the responsibility to present a claim on her own behalf and another claim on behalf of a stepchild. There are many other situations that require a special effort be made to assure a fair process at every step of the claim for each survivor.
These are some of the unique issues that an experienced attorney will understand and confront in making a claim for a wrongful death. These examples demonstrate why the emphasis should be on selecting a well-qualified attorney with significant experience in wrongful death claims, negotiation, and litigation.
How much will this cost me? How can I afford an attorney?
The Spear Law Firm handles all wrongful death cases on what is called a “contingency fee” basis. This means that no fees or costs are charged unless we collect money damages for you. All of the consultations with our office are absolutely free. When you receive compensation, meaning we have successfully concluded your wrongful death case, either by settlement or litigation, our fees are a percentage of the gross settlement. This percentage is agreed upon before we begin work, is in writing signed by you and is 33 1/3% prior to filing suit and 40% after the lawsuit is filed, up through trial.
The attorney’s fee is separate from the “costs” that the firm advances on behalf of the client. “Costs” include expenses for obtaining copies of me