When the person you love passes on, it’s always a painful and challenging experience. And if the death was a result of the negligence or inaction of someone else, it can be particularly devastating, and the financial hardships may worsen the situation even more. However, you may still be capable of holding the responsible party accountable for your loss and obtain compensation. This means that apart from mourning, you’ll need to start the process of recovering damages, which involves bringing a wrongful death claim.

You cannot go through the process of recovering compensation alone. For one, you will still be mourning and handling several other things that are required of you. Secondly, the process may be complicated, and you will need someone to give you legal advice. For these reasons, you need a wrongful death lawyer by your side. An experienced lawyer can investigate the case to establish what happened and fight to obtain justice for you. If you are in LA, CA, and are considering bringing a wrongful death claim, reach out to attorneys at The LA Personal Injury Law Firm. While we understand that being compensated won’t make your family whole again, we will advocate for your rights and help put the pieces of your life back together after your tragic loss.

What is a Wrongful Death Claim?

A wrongful death claim is filed when one party passes away due to another party or entity’s negligence or intentional act. Wrongful death claims are civil lawsuits. They are filed directly with the court by the deceased’s surviving family members or the personal representative of the decedent’s estate. Liability in these types of claims is expressed exclusively in terms of monetary compensation, which the judge orders the accused to pay to the dead victim’s survivors if the suit is successful.

Note that wrongful death claims are not the same as criminal cases for homicide. Homicide cases are brought by the state, and if the defendant is found guilty, they are penalized with prison/jail time, fines, probation, etc. A person can bring a wrongful death suit/claim even if there is an active criminal case against the defendant.

Elements of a Wrongful Death

If you have filed a wrongful death claim or lawsuit, you will have to meet a similar burden of proof that the deceased would’ve had to meet if they were alive for you to be awarded compensation. This means you will have to prove either intentional harm or negligence of the part of the liable party.

Proving Negligence

To prove negligence, you have to show that:

  • The defendant owed the deceased a duty of care

  • They breached that duty

  • The violation of the duty of care was the direct & proximate reason for death

  • The demise led to you suffering the damages you’re seeking to recover

Duty of Care

A duty of care is the obligation to avoid hurting or injuring another person or putting them in a danger’s path. In most situations, everyone has a given extent of the duty of care towards other individuals. The only concern is who is owed that duty, and to what extent does the duty go? The defendant must have had an obligation to consider the deceased’s safety as they go about their daily business. For instance, if a driver ran over the victim, that driver may be held responsible for the accident since all road users have the legal duty to comply with traffic rules and operate as safely as they can. If you’re suing a party that’s not a motorist, for instance, a government entity, you have to demonstrate that they owed the decedent a duty of care.

Breach of Duty

After you have proven that the defendant owed the dead victim safety to a given degree, you must demonstrate that their actions violated that duty. Proving breach of duty revolves around establishing that a reasonable road user wouldn’t have acted in the way the defendant did. Common examples that indicate a breach of duty on the motorist’s part include speeding, distracted driving, tailgating, road rage, or drunk driving. To prove a government’s entity was negligent, you could show that they didn’t maintain the road as they were supposed to, and potholes, gouge marks, or skid marks caused the accident.

Breach of Duty Led to a Crash that Caused the Victim’s Death

It isn’t enough to prove that a party was negligent, or that their negligence caused a crash. You also must show that the negligent party’s actions directly caused the victim’s demise and property damage. This may be challenging if the decedent suffered aggravation to a past injury since you will need to prove that the crash was the leading cause of the victim’s death.

You Suffered Damages As a Result of the Demise

For you to recover the damages for the victim’s death, you have to show that all the losses you’re claiming are directly related to the accident. This could include property damage like the expenses for repairing the victim’s vehicle and damages related to the victim’s death, as we shall look at later on. To prove damages in a wrongful death claim, you can present copies of wage statements, bills, and other similar documentation.

Demonstrating Intentional Harm

Proving intentional harm is generally the approach used if the victim passed on as a result of violence. In cases like this, the at-fault party can also be charged in a criminal court. However, if this is the case, criminal proceedings will take place separately from the civil lawsuit. The three necessary elements that need to be proven for a civil suit for intended harm to be successful include:

  • The defendant intended to do the act in question

  • The accused made non-consensual contact with the victim

  • The non-consensual contact resulted in the victim’s demise

An example of a situation that may show intentional harm is if the victim was purposely run over or struck by the defendant’s car.

Note that when you are negotiating the claim with the insurance company for compensation, you most probably will not be using the above legal concepts to discuss the victim’s accident and demise. Also, you might not be required to prove liability whatsoever. The cause of the victim’s accident and death may well be apparent, and the only concern may be what compensation amount should be awarded to you. Even if any of these subjects arise, there is a chance that you will not be using or hearing these legal terms. Rather, you and the insurance adjuster are almost certainly to negotiate using layman’s language about who was at fault for the accident and what amount you should be awarded for your claim.

Who Can Bring a Wrongful Death Lawsuit?

California personal injury law allows only specific people to bring a wrongful death claim against the at-fault party. The relevant provision particularly permits the following persons to file this kind of lawsuit:

  • The dead victim’s surviving spouse

  • The decedent’s registered domestic partner

  • The dead victim’s surviving children

  • If there’s no living party in the victim’s line of descent, the lawsuit may be filed by any person with the right to inherit the deceased’s property as per the intestate succession laws. These may include the victim’s siblings or parents, depending on who’s alive at the time of the victim’s demise.

And if the following parties can prove that they depended on the decedent financially when he/she was still alive, they can also file a wrongful death claim:

  • The victim’s stepchildren

  • The deceased’s putative spouse as well as the putative spouse’s children

  • The dead’s stepparents

Steps towards Recovering Damages in a Wrongful Death Suit

Several steps are involved when claiming for damages recovery. They include:

Preparing for the Litigation Process

Preparation for a claim filing is a phase called pre-litigation. During this stage, you have to carry out various tasks in preparation for the lawsuit filing. The things you need to do are:

  • Setting up the Estate: If it’s the deceased’s estate that is to bring the lawsuit, it has to be set up in court in the victim’s county of residence.

  • Investigation: Investigations into the circumstances and facts of what led to the victim’s demise should be conducted. Generally, this is to be performed by a personal injury lawyer, with help from other necessary experts.

  • Identifying and Notifying Liable Parties: Your lawyer will have to determine the parties or party believed to have caused the accident that resulted in the victim’s death and inform them of your move to bring a suit.

Negotiation and Settling

This stage doesn’t occur in all cases, but in most of the claims, the liable party you plan on suing will want to try to reach a settlement agreement for the case out of the court. Usually, this is an excellent decision since it can abolish the risk of losing your suit, whereas still receiving a just settlement. If you cannot reach an agreement with the liable party and their insurance company at this stage, you’ll still have the right to proceed with the filing of a wrongful death lawsuit. Your lawyer will conduct most of the negotiations, and they will consult with you from time to time about critical decisions.

Bringing the Lawsuit

If negotiations are not successful, this is the point where you file a wrongful death suit. You will kick off this process by filing a Writ of Summons or Complaint in court. All named liable parties will be notified of this move.

Litigation Phase

The litigation stage will include several different tasks, like the discovery stage, requests for documentation, interrogations, etc. Additionally, this is the point whereby the pre-trial, trial, and arbitration are performed. Throughout this process, it’s possible to go ahead with negotiations to see if you can reach a settlement offer that both you and the defendant can agree on. If no agreement can be reached, litigation will go on until the trial comes to an end. When the trial ends, the jury or judge will issue their ruling. Based on the ruling, a compensation award will be apportioned.

Recoverable Damages in a Wrongful Death Claim

A variety of personal injury damages are awarded once a wrongful death lawsuit/claim becomes successful. The specific amount involved is based on the circumstances surrounding the case. Generally, damages are divided based on whether they’re compensating the surviving family members for their loss or the estate for the losses stemming from the victim’s death. Typical losses credited to the estate are:

  • Funeral costs

  • Burial expenses

  • The hospital and medical expenses for treatment that the victims underwent before their death due to the injuries they incurred

  • Lost income, which includes potential wages that the dead would be earning in the future if they were alive

Typical losses awarded to the surviving members of the decedent’s family include:

  • Loss of expected household services

  • Loss of inheritance due to the demise

  • Value of all the services the dead would’ve provided

  • Loss of affection, companionship, moral support, attention and love

  • Loss of guidance, nurturing, and care the deceased would’ve provided

  • Loss of consortium

  • The decedent’s pre-death pain & suffering

Note that generally, an heir can’t be awarded punitive damages as far as wrongful death claims are concerned under the California statute. The exception to this law is if the victim passed away due to felony homicide for which the accused has been found guilty. However, punitive damages might be available in survival actions on behalf of the decedent’s behalf. We shall look at the difference between a wrongful death claim and a survival action later in the article.

How a Wrongful Death Settlement is Determined

Placing a monetary value on a person’s life is extremely difficult. However, several factors are usually considered, which help in reaching an amount. The factors include:

  • The deceased person’s age

  • The earning capacity of the deceased

  • The dead victim’s health status

  • The decedent’s income at the time of demise

  • The circumstances and age of the victim’s dependents

  • Medical expenses plus other costs incurred for the deceased

  • The decedent’s training and education

  • Funeral costs

  • The worth of the lost benefits, for instance, health insurance, pension, etc.

The amount of compensation mustn’t be simply a rough estimate. Instead, it should be supported by objective proof. Economists or other experts can look at the dead victim plus their circumstances then consider the different aspects to establish the appropriate amount that should be awarded.

A Wrongful Death Attorney is Beneficial to Your Case

Having a skilled lawyer to represent you as you seek to recover damages has several significant advantages. Since you and other family members of the deceased will be facing a time of grief and stress, having a lawyer to fight for you gives you the necessary time to spend with the other family members and deal with the many issues you have to resolve. When you work with the wrongful death lawyer, they will provide various services for you, like:

  • Investigating and documenting your claim

  • Calculating the worth of your deserved damages

  • Building and presenting the most substantial possible claim to the insurance provider of the at-fault party

  • Handling all communications for you

  • Negotiating with the liable party’s insurance provider on your behalf

  • If need be, resorting to legal steps and taking your case to court

An injury lawyer will work to defend your rights. They will ensure the insurance provider doesn’t exploit you when you are at your stage of vulnerability. Insurance companies will usually try to convince you to record a statement with them, which they can use against you later. Alternatively, they can pressure you into accepting a lower compensation offer that doesn’t cover your damages justly. A good attorney will hold the liable party’s insurance company to the highest ethical standards that you deserve, which may maximize the worth of your damages.

A Wrongful Death Claim vs. a Survival Action

Wrongful death suits are at times combined with what’s called a survival action under the Code of Civil Procedure 377.30. Whereas a wrongful death suit compensates the decedent’s surviving family members for their loss, survival actions let the heirs sue on behalf of the dead victim’s estate. Survival legal actions usually recompense the decedent’s estate for two kinds of losses.

  • Claims for the injuries that caused the victim’s demise provided the individual survived those injuries for at least a given period, regardless of how short

  • Claims that are unrelated to the demise and which the dead had the entitlement to sue for before they died

A survival action is more complicated than a wrongful death claim. One significant difference to note between these two is that survival actions may include compensation for punitive damages. Additionally, it is worth noting that both of these actions could be and usually are, tried together when they stem from the same wrongful act.

Are Wrongful Death Damages Taxable?

As per the Internal Revenue Service (IRS), most damages for wrongful death aren’t taxed, as long as they are considered compensatory. If the damages are punitive or intended to punish the responsible party (in the case of survival actions), the IRS may tax those.

Any damages must be classified as to whether they are punitive or compensatory. This helps to resolve any confusion that may arise when it reaches a point that you have to report them to the IRS.

Statute of Limitations in Wrongful Death Claims

Like in personal injury cases, wrongful death cases in California have to be filed within a specified period. This period is referred to as the statute of limitations. California statute requires that a wrongful death lawsuit be brought within two years from the date of the victim’s demise. If the suit isn’t filed within the two years as mentioned, you’ll lose your right to file it at any point.

However, there’s a critical exception to the two-year timeframe you should take note of. This exception is called the discovery rule. In situations where the reason for your loved one’s death wasn’t evident when the person passed on, but the reason is later on discovered, this may extend the timeframe within which you have to bring a wrongful death suit.

In case the discovery rule applies in your case, then the timeframe to bring your lawsuit will be two years from when the cause of the victim’s demise is determined. We have further exceptions to this discovery rule that your attorney can help you to understand.

In case you are filing the lawsuit against a government entity, for example, if there’s a flaw in the road design that may have led to the crash that caused the victim’s death, then you will have only six months to bring a claim with the government organization. The entity has forty-five days to deny or agree to the claim and compensate you. If they deny it, you will have another six months to bring a lawsuit in court.

If it is a minor, we have particular guidelines involved. If the child is to seek damages recovery for their parent’s demise, they have up to two years from the date they turn eighteen years old to file the lawsuit. Finally, if it’s a case of medical malpractice, particular guidelines are involved too. In a case like this, you have only a year from the day of the demise to file the wrongful death claim.

Contact a Wrongful Death Attorney Near Me

Not so many things can be equated to the challenging and emotional situation of losing the person you love, especially if the demise is unexpected and resulted from the wrongful act of someone else or an entity. If your loved one died in these kinds of circumstances, you could bring a wrongful death claim/lawsuit with help from an experienced wrongful death lawyer. At The LA Personal Injury Law Firm, we will extend our support and compassion to you during this challenging time, while helping you understand your legal rights as a surviving family member. Serving clients in Los Angeles, CA, our lawyers will fight for you throughout the claim process, helping you obtain the best possible outcome. Contact us 310-935-0089 to talk to one of our lawyers. We are available 24/7.