June 28, 2017
Most wrongful death cases are brought when a family member dies as a result of the carelessness and negligence of somebody else. No two wrongful death cases are alike. Each presents its own sets of facts, but most present some common challenges. Here are five typical issues.
Who can bring the wrongful death lawsuit?
Every state has its own wrongful death statutes which specify who is allowed to bring a wrongful death case. The follow categories of eligible people might be given rights in this order:
- The surviving spouse; or
- If there is no surviving spouse, the children of the decedent; or
- If there is no surviving spouse or children, the decedent’s parents; or
- If there are no surviving parents, the decedent’s estate.
When can the wrongful death lawsuit be filed?
This issue involves the statute of limitations. In some states, anybody with a claim arising out of the death of a family member is required to file their lawsuit within two years of the date of the decedent’s death. If they fail to do so, they’ll probably be forever barred from proceeding further. If the decedent survived the accident and then died as a result of it, there’s also a survival statute that an action can be brought under along with the wrongful death claim. Families should be mindful of the statutes in their jurisdiction. In addition, there might be two different limitations periods for the wrongful death case and the survival case. A wrongful death lawyer Des Moines IA trusts can advise loved ones as to how statutes of limitations and other laws may affect their case.
Preserving the Wrongful Death Case
The surviving family shouldn’t wait for two years before filing their lawsuit. If evidence isn’t preserved, it might disappear. Memories of witnesses can get fuzzy, or witnesses might innocently disappear too. One of the most important actions that a family can take after the loss of a loved one is to retain an experienced wrongful death attorney for purposes of investigating and preserving all evidence in connection with the decedent’s death.
Proving the Wrongful Death Case
Establishing that the death was wrongful can become quite complicated. Because of sizeable potential losses, insurance companies and insurance defense attorneys will do whatever they legally can to avoid paying on a wrongful death claim.
- In order to prove a wrongful death case, it must be shown that the decedent died as the direct and proximate result of an act or failure to act of any of the named defendants.
- After that, it must be shown that there were surviving family members or beneficiaries that the law allows to seek lawful damages.
Damages can be categorized as economic or noneconomic.
- Economic damages consist of financial losses incurred by the decedent’s family such as income and financial support that would have been received by the family members if their family member had not been killed.
- Noneconomic damages involve loss of consortium and companionship, grief and sorrow that resulted from the decedent’s untimely and wrongful death. The challenges involved in proving damages in any wrongful death case involve complicated rules of civil procedure and evidence.
Wrongful death cases are usually challenging to win and often involve intense emotions. Contact a law firm that handles wrongful death suits and request a free consultation to review your case. A knowledgeable attorney can provide legal guidance which can help you decide how you want to move forward.
Thanks to our friends and contributors from Johnston Martineau PLLP for their insight into common challenges of filing a wrongful death suit.