Wrongful Death Attorney

Understanding Wrongful Death Claims

Losing a loved one due to the negligence of another’s actions can be emotionally devastating. When the death happens suddenly and without warning, the pain can be unbearable. It is important that the party or parties responsible for their death be held accountable for their actions. What recourse do you have? Missouri law says you are entitled to file a wrongful death lawsuit against the person(s) who caused the death of your loved one.

“Wrongful death” means that a person or a corporation, either through negligent, reckless, or intentional conduct, caused someone’s death. If your loved one has just been killed through the negligence or intentional conduct of a third party, your lives may be devastated. You may be grieving for a long time. That mother, or father, or child, may have been the most important person in your whole life. Many people say that when a loved one dies, it feels like part of the survivor dies as well. I have a wife and six children, and I cannot bear to think of how distraught and lost I would be if one of them died. Perhaps that person who was killed was the sole breadwinner of the family. Unless there is life insurance or other assets, the death of that person may make the family destitute. If that death was caused by the negligent, reckless, or intentional conduct of a third party, you need to consider retaining an experienced wrongful death attorney.

Have you lost a loved one to a wrongful death?

The loss of a beloved relative in a wrongful death accident is an extraordinarily traumatic experience, made all the more so by the sudden and unnecessary nature of the loss. The purpose of the lawsuit is to provide compensation to the parties who depended on the deceased person for support, both emotional and financial. The wrongful death may be the result of a reckless, careless or negligent act. Such accidents are always rooted in negligence on the part of another, and they can come in a variety of forms such as:

• Automobile accidents
• Defective products
• Drunk driving accidents
• Drowning accidents
• Slip and falls
• Construction site accidents
• Medical malpractice
• Dangerous prescribed pharmaceutical medication
• Nursing home negligence
• Accidents in the workplace
• Hazardous chemical exposure
• Farm accidents
• Violent acts

The party or parties responsible for accidents that result in wrongful death should be held liable for the damages they have caused to the victim’s family, as well as for their pain and suffering. If your family has suffered the loss of a loved one due to the negligence of another, do not hesitate to retain the powerful representation of a lawyer from our proven injury firm.

Common Questions

Wrongful death cases can be extremely complex; it is important that you hire a qualified wrongful death attorney. The Medler Law Firm has access to medical experts and accident reconstruction experts who can thoroughly investigate your case. We are compassionate, caring and capable of answering all of your questions about your specific circumstances. Some of the questions victims’ families often have include:

• Who is entitled to sue?
• Can I recover monies for pain and suffering?
• How are the damages to be divided among family members?
• Can I sue for punitive damages?
• Are adoptive parents and children covered?

Who is Entitled to Sue?

Wrongful death statutes passed by the legislatures of the states govern this question, and each state statute is different. In some states, like Illinois and Arkansas, only the “Estate” of the deceased person is entitled to bring a lawsuit. In other states, like Missouri, the Personal Representative does not bring the wrongful death case; rather, the wrongful death statute specifies which category of persons are entitled to sue. In California, it is a little bit of a mixed bag. Let’s examine how this works.

States in Which an Estate is Required

If your loved one dies in a state that requires the Estate to bring the lawsuit, like Illinois, that means that the family will often need to hire a probate lawyer to open an estate (this can cost a few thousand dollars), or, in some cases, your personal injury lawyer can do it for you and roll the costs of opening the estate into the case, to be reimbursed by you later when you recover. A person is appointed by the Court to act as the “personal representative” of the Estate. If the person who died left a will, that will determine who is the Personal Representative. If there is no will, then typically a relative will apply to the court to act as the Administrator or Personal Representative. The probate court then will order “letters of administration” and appoint the person to become the Personal Representative of the Estate. That person will handle all the debts of the estate, and ultimately make the distributions to the proper parties before the estate is closed.

States in Which No Estate Required

Some states, like Missouri, dispense with all this “Estate” business, and just specify which classes of people are entitled to recover in wrongful death. In those states, there is no need to open a probate estate. For example, in Missouri, “Class 1” wrongful death beneficiaries are the spouse, parents, and children, as well as lineal descendants of deceased children. Anyone in Class 1 is allowed to bring the wrongful death lawsuit. If there are no people in Class 1, then you move on to Class 2, such as brothers and sisters.

California Wrongful Death Rules: A Mixed Bag

California’s wrongful death rules are governed by CCP Sec. 377.60. That statute provides EITHER the Personal Representative of the Estate OR one of a listed class of persons can bring the lawsuit. So think of California’s wrongful death statute as sort of a mixture of the two types of statutes listed above. In addition to the Personal Representative of the Estate, the following individuals can bring a wrongful death case:
(a) The decedent’s surviving spouse, domestic partner, children, and issue [“issue” means lineal descendants, like kids, grandkids, etc.] of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession.
(b) Whether or not qualified under subdivision (a), if they were dependent on the decedent, the putative spouse, children of the putative spouse, stepchildren, or parents. As used in this subdivision, “putative spouse” means the surviving spouse of a void or voidable marriage who is found by the court to have believed in good faith that the marriage to the decedent was valid.
(c) A minor, whether or not qualified under subdivision (a) or (b), if, at the time of the decedent’s death, the minor resided for the previous 180 days in the decedent’s household and was dependent on the decedent for one-half or more of the minor’s support.

So that is a large group of people. Any one, or any group, of those individuals, can bring the wrongful death case in California.

Adoptive Parents and Children; Illegitimate Children

What about adopted children and adoptive parents? They are treated the same as children and parents who did not have an adoption. The same thing is true for illegitimate children. They are treated the same as “legitimate” children.

Allocation Hearings

What if one person (let’s say the daughter) brings the lawsuit—does that mean that no one else gets the money that is recovered in the lawsuit? No

When the case is over, and there is either a settlement or judgment, the Court then holds an “allocation hearing.” Everyone who is a beneficiary under the wrongful death statute gets notice and can attend. At that hearing, the Court will then determine how the money is split up among the beneficiaries. So just because you were not the person who brought the lawsuit does not mean that you cannot recover.

Do the people who are wrongful death beneficiaries all the proceeds equally? Sometimes, but many times not. At the allocation hearing, the court arrives at percentages that are fair, and bases the decision on such things as how close the person in the class was to the deceased person. So if a child dies leaving divorced parents, and one parent had lots of contact with the child, and the other parent did not, the parent with closer ties will get a greater percentage. Often times, the survivors will agree on their own split. We had one case in which the parents, who were elderly, agreed to take 5% each, giving the wife 50%, and each of the two children 20%. If the wrongful death beneficiaries agree on a split, the Court will often honor that arrangement. Generally, in these cases, there is an inclination to give the spouse the most. In rare cases, for example a child dies and their parent is in prison and has no contact with the child, the beneficiary can actually be awarded nothing by the Court.

What if there are two wrongful death beneficiaries in the class who each want to bring a wrongful death case with their own lawyer?

Any wrongful death beneficiary can bring a wrongful death lawsuit. Let’s assume that a child dies, leaving no siblings, but a surviving mother and father who are divorced and hate each other. The mother gets an attorney and the father gets an attorney. If the mother files a lawsuit, the father can then also file a lawsuit. But at the end of the day, there can only be one wrongful death action and recovery for the death of any one person. So in that case, the mother’s case and the father’s case would be consolidated, and two lawyers would be bringing the case together. This is not a favorable scenario, because it is better to have one “captain of the ship” and to have every beneficiary “on the same page.” For example, in one case we had where we represented the father, and another law firm had the mother, when the mother got on the stand, she was so angry that the father could possibly get any part of the recovery that she bad-mouthed the father on the stand. Once attacked, the father bad-mouthed the mother on the stand. Guess what happened? The jury gave them nothing. It is much more preferable if all the wrongful death beneficiaries can work out their differences.

Here is another problem. In these cases of wrongful death beneficiaries with opposing interests, attorneys can often be faced with questions of a conflict of interest. Let’s assume that a lawyer initially gets hired by the mother of a deceased child. Then the father of the child calls and wants to hire the same attorney as well. However, the mother and father hate each other and each one feels that if there is a recovery, he/she should receive a greater percentage than their divorced spouse. The attorney has to recognize that at the end of the case, when it comes time for an allocation, the mother and father will be fighting with each other to get a greater percentage. So this lawyer would not be able to represent both of them. In some cases, where the conflict is great enough, an attorney might have to withdraw from representing one or both of them. What is the answer to this? The best answer is for the divorced spouses to work out an allocation among themselves, with no involvement from the attorney at all. We had one case in which a teenage girl was killed by a negligent truck driver. The mother had sole custody of the child and had the most significant contact with the teenager and took care of her. The father had much more minimal involvement with her life and paid very little of his child support obligation. We were hired by the mother, but then the father wanted to retain us, too. We told the father that we could not ethically represent him. However, the mother was concerned that if we did not make the father happy in some way, he might bad-mouth her in the case, reducing the value of any settlement. So after we explained the allocation rules to the mother, she called the birth father on her own, with no involvement from the attorneys, and she and the father agreed to a 70 (mom)/ 30 (dad) split. She got the father to sign a written agreement memorializing their understanding. With that issue resolved, we were then free to represent the father as well. The mom and dad, although they disliked each other, then cooperated on the case. We resolved the case very successfully for both of them.

What if the mother files the lawsuit, and the father does nothing? Is the father entitled to a share at the end?

Yes, unless the father has such minimal involvement with the child’s life that the court believes the father is entitled to nothing. The mother and father are both wrongful death beneficiaries for the death of their child. So even though the mom may have filed the case and “did all the work” to get a settlement, the father can come in at the end at the allocation hearing and ask for a percentage. Now keep in mind that the fact that the mother did all the work is one factor the court can consider in awarding a percentage. But your name does not need to be on the lawsuit for you to recover, as long as you are in the correct class of wrongful death beneficiaries.

What Types of Damages are Recoverable in a Wrongful Death?

General Damages Recoverable
In California, under CCP Sec. 377.62 and California case law, wrongful death claimants may recover:

(a) “Economic damages”

These damages are those with an easily ascertainable pecuniary value and can include:

• The financial support the deceased would have contributed to the family during their lifetimes;
• The loss of gifts or benefits the heirs could have expected to receive from the deceased;
• Funeral and burial expenses; and
• The reasonable value of household services the deceased would have provided.

And (b) “Non-Economic” Damages
These damages are those that are a little harder to quantify, and can include: compensation for the loss of the decedent’s:

• Society and companionship,
• Protection,
• Affection,
• Moral support,
• Training and guidance, and
• Sexual relations.

There is no fixed standard for deciding the amount of non-economic damages in a California wrongful death case. A jury can award any amount that is reasonable based on the evidence and common sense may recover damages for the heir’s pecuniary loss, which may include funeral and burial expenses, the loss of the decedent’s financial support (see discussion below), services, training and advice; and the pecuniary value of the decedent’s society and companionship.

Grief, Sorrow and Sad Emotions

Under California law, a wrongful death claimant may not recover for the grief or sorrow attendant upon the death of a loved one, or for sad emotions, or for the sentimental value of the loss.

Pain and Suffering of the Decedent

So let’s assume that a truck negligently hits a car and causes a post-collision fire. The occupant is badly burned and suffers in agony in the burn ward for four months until he dies. Unlike other states, California does not allow wrongful death claimants to recover for that pain and suffering for the period in which the decedent suffered. The only exception is if there is “elder abuse”—for example, an elderly relative is mistreated and killed at a nursing home. In that case, a different statute applies and may allow, subject to limits, the recovery of certain pre-death pain and suffering by the decedent.

Punitive Damages

These are damages designed to punish the Defendant. In California, these damages are not allowed in a wrongful death lawsuit. But never fear. There is a different type of claim called a “survival” claim.”  A “survival” claim is based upon CCP Sec. 377.34, which provides that the deceased person’s claims for certain types of damages are not extinguished at death and may be brought by the Personal Representative of the Estate or the decedent’s “successor in interest.” Punitive damages may be asserted in a survival claim if the Defendant’s actions are egregious enough.

Decedent’s Pre-Death Medical Bills and Personal Property Damage, and Pre-Death Loss of Wages

These type of damages are also recoverable in California under the Survival statute. So if the Defendant’s negligent actions caused the victim to languish for a period of time in a hospital before dying, those hospital bills are paid via the survival claim. The wages lost by the decedent during this period are also recoverable under survival.

Think of a wrongful death claim as compensation for the heirs, while a  survival claim is compensation for the deceased person during the period between the negligent act and the death (other than pain and suffering).

Often, a survival claim is joined with a wrongful death claim in California. However, make sure you consult with an experienced wrongful death lawyer, because there are cases out there in which lawyers forgot to include a survival claim along with a wrongful death claim and the beneficiaries lost important benefits, like medical bills and punitive damages.

Economic Damages

Let’s assume that a husband dies who was the sole breadwinner for his wife and children. Let’s assume that the husband was 40 years old and making $65,000 per year. The spouse can recover for the lost economic damages (the money the husband would have earned had he lived). Your attorney will hire an economist or accountant expert, who will use life expectancy tables to determine what the typical life expectancy of this man was. Then he will take that number of years, and multiply it by the wage of the person at the time of death. That’s the simple answer, but it is actually a little more complicated than that. The expert normally has to consider the fact that had the husband lived, he would have gotten raises over time, which would have made the salary higher. He also had benefits, like health insurance, through work, which have a value which must be quantified. Maybe there is a lost pension. On the other hand, any money he made would have been subject to income taxes, so those have to be taken into account. There is also the fact that any jury award is given to the survivors immediately in one big lump sum check today, and not over twenty or thirty years, which would be how the money would have come in had the husband lived. A dollar today can be invested over the course of time, so if we do not account for the time value of money, the survivors could be paid too much. Also, if the husband had lived, he would have spent some of that money on his own consumption. To be realistic, an expert might have to deduct some amount for that. An expert will take into account lots of variables like these and arrive at a lost wages number which is fair.

Medical Expenses

In the burn example above, the decedent would have four months’ worth of hospital bills, which could be significant. In many states, like Missouri, those expenses are recoverable as economic damages.

Lost Wages of a Housewife or Househusband

What if the person who died is a housewife or househusband taking care of small children? Obviously, such persons work very hard every day, and if they die, their work will be an item of damage for their survivors. Missouri’s statute provides:

If the deceased was not employed full time and was at least fifty percent responsible for the care of one or more minors or disabled persons, or persons over sixty-five years of age, there shall be a rebuttable presumption that the value of the care provided, regardless of the number of persons cared for, is equal to one hundred and ten percent of the state average weekly wage, as computed under section 287.250.

The current “state average weekly wage” for death in Missouri is $1,366.91, so 1.1 x $1,366.91 = $1,503.60. That equates to an annual lost wage of about $18,000.

Loss of Companionship, Support, Training, Guidance, Etc.

Much of the damages suffered when someone dies is intangible– the mother who was always there to comfort the child when she was sad; the father who made great pancakes and taught the kids how to throw a baseball; the spouse who gave unconditional love. Those types of damages are called “non-economic damages” and are also recoverable in just about every state. A jury can award just about any amount they want for this type of damage.

One of the problems is that “tort reform advocates” have tried to convince state legislatures to limit or cap these type of damages. In medical malpractice cases in Missouri, for example, these type of damages are limited to $700,000. And President Trump’s 2017 proposed budget, if passed in its current form, would limit these type of medical malpractice damages to $250,000. The Medler Law Firm strongly opposes these type of unfair and unconstitutional restrictions on the jury’s function to properly award damages in a civil case. However, until such laws are overturned, they may apply to limit part of your recovery, depending on the facts of your case. Currently, however, there are no non-economic damage caps on cases not involving medical malpractice.

Grief and Bereavement

Some state wrongful death statutes allow a beneficiary to recover for grief and bereavement. Missouri’s statute does not allow recovery for these damages.

Funeral Expenses

These damages are also recoverable in nearly every state, including Missouri.

Value of the Life of the Decedent

In a few states, like Arkansas, a beneficiary can recovery for the value of the life of the decedent. These type of damages are not recoverable in Missouri.

Aggravating Circumstances or Punitive Damages

In some states, like Missouri, these type of damages are recoverable, if the Decedent’s actions were outrageous or were in conscious disregard of the safety of others. Take the O.J. Simpson case, for example. Even though a criminal jury acquitted O.J. of a crime, a civil jury later held that Simpson, more likely than not, murdered Nicole Simpson and Ron Goldman. The jury awarded the families $25 Million in punitive damages. These type of damages are reserved for those egregious cases of wrongful death, although the conduct by the defendant does not need to be intentional (as in the Simpson case) for a jury to award punitive damages.

What is the Statute of Limitations on a Wrongful Death or Survival Case?

In California, the statute of limitations for both wrongful death and survival is two years from death. However, the “clock” starts running on wrongful death at the time of death. In a survival claim, the clock starts running at the earlier of: (a) the date of the injury; or (b) six months after death.

With over 50 years of combined experience, we have the skill and seasoned knowledge your family’s case deserves, and we can help you fight for justice.

Enlist Powerful Advocacy

A Johns Hopkins Medical Study from 2016 found that there are over 250,000 deaths caused by medical errors each year making medical malpractice the third leading cause of death behind heart disease and cancer. There are 40,000 fatal motor vehicle accidents every year. Almost 20,000 yearly fatalities result from falls, and 5,800 occurred in workplace accidents.

The wrongful death attorney at The Medler Law Firm is well-versed in these tragic cases, and we are available to provide you with the aggressive and tireless representation needed to fight to hold the negligent parties responsible for their harmful actions.

If you lost a loved one in a tragic wrongful death accident anywhere in California or near any of these cities & communities, call us right now for a no-obligation case review. You may be entitled to negligence-based compensation.

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