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What Is Wrongful Death?

by | Oct 5, 2021 | Blog, Wrongful Death | 0 comments

It is difficult enough losing a loved one under any circumstances. It is even more complicated when your family member passes away because of someone else’s carelessness or misconduct. When that happens, the family may deserve financial compensation.

The type of lawsuit that they can file is called a wrongful death claim. Essentially, this means that their loved one should never have died, and they would still be alive today had it not been for what someone else did or did not do.

The Elements of a Wrongful Death Claim

What Is Wrongful Death

To win a wrongful death lawsuit, a family needs a wrongful death lawyer who can prove:

  • A person died due to the negligence or criminal action of someone else
  • The surviving family suffered damages from the loss

In many ways, this is exactly like a personal injury lawsuit because some of the same proof is required. Namely, your lawsuit would need to meet the same negligence test as every personal injury case.

This requires the following four-part test:

  1. The defendant owed your loved one a duty of care
  2. They breached the duty of care by acting in a way that a reasonable person would not under the circumstances
  3. Your loved one suffered injuries
  4. The person would not have suffered injuries if it not been for the acts of the defendant

How Wrongful Death Claims Compare With Personal Injury Lawsuits

In other words, a wrongful death claim is a negligence case with a death involved. Once you can prove negligence, you would move to the damages phase of the case (there are differences then that we will describe below).

The law dictates to whom the right of wrongful death claims belongs. Texas law sets a hierarchy of whom can file a lawsuit and share in the proceeds of a settlement or jury award.

This includes:

  • The surviving spouse
  • Children of the deceased
  • Parents

Families can file wrongful death lawsuits together as one claim, or each eligible person can file a claim. All of the individual claims are joined together as one.

In other words, there will not be multiple trials arising from one death. The court will decide how the proceeds of the case are divided. You can assume that the surviving spouse will receive the largest part of the proceeds, followed by the children and the parents. The hope is that the family can work together harmoniously to file the case.

Examples of Wrongful Death Cases

Wrongful death cases can arise in many circumstances. Any act of daily life where a person loses their life as a result of some else’s wrongful conduct can be the basis for a wrongful death lawsuit. It can happen on a simple drive to the store or even in one’s own home.

Here are some examples of things that can be the subject of a wrongful death case:

  • A woman dies from ovarian cancer because she has been using talcum powder that contained asbestos
  • Your loved one died in a truck accident because the truck driver made a lane change and can not see into their blind spot
  • A tenant dies from carbon monoxide poisoning because the landlord did not properly maintain the premises or install a detector
  • A pedestrian gets hit by a car and dies because the driver was texting and did not see the crosswalk due to distracted driving
  • A patient dies from a disease after losing valuable treatment time because the doctor failed to correctly diagnose them
  • Someone suffers fatal injuries in a mass transportation accident, such as a plane or train crash

The common element in all of these fact patterns is that someone else failed to exercise the appropriate degree of care under the circumstances. Companies owe a duty of care to their consumers, just like doctors owe it to their patients. When they breach that duty of care, and it causes a death, they must pay the family.

Wrongful Death Claims From Intentional Misconduct and Attacks

Wrongful death is not just limited to situations where a loved one died from someone else’s carelessness. Intentional actions can also form the basis for a wrongful death lawsuit. Often, family members will file a civil lawsuit against the perpetrator if another person killed their loved one.

This wrongful death lawsuit is independent of any criminal prosecution that may occur. When a court sentences a person, they must pay for the damage. The most common type of wrongful death case associated with a criminal action is a lawsuit against a drunk driver.

There are other examples, and perhaps the most famous example of this type of lawsuit is the one filed by the family of Ronald Goldman against O.J. Simpson after a court acquitted football star of murder. Even after the criminal trial acquitted Simpson, Goldman’s family obtained $33 million in damages in a wrongful death claim.

Wrongful Death Cases Do Not Include Job-Related Injuries

Importantly, many work-related fatalities do not give rise to wrongful death claims. Under most state workers’ compensation statutes, employees cannot sue employers for negligence and wrongful death. This holds even if they did something wrong or failed to follow OSHA work safety rules.

The workers’ compensation system is meant to be the replacement for wrongful death cases. Employers escape legal responsibility in all cases, except when they intentionally harmed an employee or did not have workers’ compensation insurance.

Compensation in a Wrongful Death Case

Wrongful death is the legal right of the surviving family to receive compensation for what they have lost. When a loved one dies, family members will suffer injuries from it that endure beyond the physical death.

These damages often include:

  • The loss of financial support from their loved one
  • The loss of emotional and physical companionship
  • The loss of guidance that children would receive from a parent
  • The family’s loss, grief, and trauma from losing a loved one.


How Wrongful Death Settlements Work

These settlements can result in a large payment to the family given the damages involved. After all, there is little worse that can happen than losing a loved one. The damages from losing a family member can be considerable. Although it may seem insensitive to attach a dollar value to a life that meant so much, this is exactly what happens in a wrongful death case. Unless there is also a criminal prosecution, there is no other way for a family to get justice.

While we cannot give you an “average” wrongful death settlement amount, they are typically larger than settlements of personal injury lawsuits that have not resulted in death. In many cases, these can reach into the seven figures. When there is so much at stake, you need the advocacy and counsel of an experienced lawyer who knows how to handle large cases.

How Attorney Helps Your Wrongful Death Case

Your attorney would work to value your wrongful death claim after a comprehensive review of your family situation. Your lawyer would speak with the family to learn your situation and ascertain what the deceased would have earned and provided throughout their lifetime. Valuing a wrongful death case requires an in-depth knowledge of the deceased person’s life and their role in the family.

The difference between a wrongful death lawsuit and a different kind of personal injury claim lies in the damages that the family can receive. In a personal injury case, you are recovering compensation for the injuries that you suffered on your own. A wrongful death claim is about the family. When they lose a loved one, they suffer their damages because of the loss. They are legally entitled to be compensated for these damages.

The person responsible for the wrongful death does not get to avoid paying personal injury damages for what the deceased person went through before they died. In some cases, the victim does not die immediately. The longer they live between the injury and their death, the greater their suffering. However, this is a different kind of lawsuit. This is called a survival action. Family members or other authorized parties file it on behalf of the deceased person’s estate. The proceeds of this lawsuit are divided according to the terms of the estate, as opposed to being allocated to family members by a court.

How to Pursue a Wrongful Death Claim

You can pursue wrongful death compensation in several ways. The first is by filing a claim with the insurance company of the person or company responsible for your family member’s death. In many cases, an insurance policy will cover wrongful death claims.

Most responsible parties will have insurance coverage to protect their assets from a wrongful death lawsuit. Large companies may either have insurance or enough cash reserves to pay for wrongful death damages. If the responsible party does not have enough insurance coverage, they will need to pay the judgment from their assets.

Once you present your claim, the insurance company will review it and decide whether they believe you are entitled to money. If not, they will deny your claim. If your claim has merit, you will receive a settlement offer. You are under no obligation to accept the settlement offer, and you can negotiate for more money. Chances are that this is what you will have to do because initial settlement offers are always low

Filing a Wrongful Death Lawsuit in Court

The other way is by filing a wrongful death lawsuit. You can proceed right to a wrongful death case without going through the insurance company first. You can also file a lawsuit if the insurance company denies your claim or will not offer you enough money in a settlement. Then, your case may go in front of a jury if the defendant does not settle with you first. The case begins when the lawyer drafts a legal complaint and files it in court. If your case does not settle, you can expect that this process may take years.

The Role an Attorney Plays in a Wrongful Death Case

When a loved one dies, families should retain an attorney if they suspect that someone else may be responsible. This is a crucial step because families will need the financial compensation that a wrongful death lawsuit may provide.

There are several major roles that an attorney will play in the case:

  • Investigate the cause of the death and gather evidence that can prove that someone else was responsible
  • Work to establish and quantify the damages that the family has suffered from their loss
  • Negotiate with the defendant or their insurance company to agree on the amount of compensation in a settlement agreement
  • If you cannot reach a settlement agreement, file a wrongful death lawsuit to begin the legal process

Although the legal process can be difficult during a time of grief, this is something that the family must do. In fact, close family relatives only have 90 days from the death to file a wrongful death case. If not, the executor of the estate must file the case. This means that the family needs to move quickly and should call an attorney at the first possible moment, even when they are in the middle of grieving.

The Wrongful Death Legal Process Is Necessary, Even During a Difficult Time

Wrongful death cases can be painful for a family because they involve getting answers for how their loved one died and proving that the death should never have happened. However, they can also bring justice by making the responsible party pay and financial security that their loved one would have otherwise provided.

Families do not have to experience grief and loss without doing anything about it. The wrongful death legal process is the way for the family to take action against the person to blame while recovering financially for what they have lost. It will not bring back a loved one, but it can help in other ways.