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Who Can File a Wrongful Death Suit?

by | Oct 12, 2021 | Blog, Wrongful Death | 0 comments

When someone dies due to a personal injury, it is still possible to get justice for their death, even though they are no longer around to file a lawsuit. Texas law allows surviving relatives to file wrongful death lawsuits to obtain financial compensation for what they have lost when their loved one died. Who can file a lawsuit is often an issue, as the family seeks the money they need to pay them back for their damages. Here is what you should know about the people who can sue and how they can receive compensation.

Wrongful death can happen suddenly or over time. Some families experienced unexpected trauma when their loved one died in an accident. Others will lose a loved one over time when they develop illnesses due to a defective product, medication, or long-term exposure to a harmful substance. The result is the same. Families are left with grief and a void that nothing can fill, even by money. However, compensation is a family’s only option, as they cannot bring their loved one back.

Texas Wrongful Death Law

Filing Wrongful Death Lawsuit

Chapter 71 of the Texas Civil Practice and Remedies Code contains Texas’s wrongful death law. The statute sets forth the circumstances under which survivors can file a wrongful death lawsuit.

It states that a person will be liable for damages if death was caused by:

  • Wrongful act
  • Neglect
  • Carelessness
  • Unskillfulness
  • Default

These are legal ways of saying that someone else did something they should not have done or did not do something they were supposed to.

Families Can and Should Take Legal Action After a Wrongful Death

After a wrongful death, a family will find itself needing to take legal action. They have suffered a profound loss that will impact them in many ways. Not only are they missing the guidance and support that their family member provided, but they may also be experiencing financial difficulties. Their loved one may have been a breadwinner for the family, helping put a roof over their loved ones’ heads and food on the table. This steady source of income and companionship is a loss that the family cannot otherwise make up for.

While a family ordinarily does not want to think about a dollar value on the life they lost, this is the only way to get justice for what they have been through. Wrongful death lawsuits are a way for the surviving family members to be paid for their suffering when they have lost someone very close to them. Even though the legal process may involve reliving the grief and trauma of losing someone close, it is necessary. Otherwise, the family will not obtain compensation, and the person responsible for the wrongful death may not be accountable.

An Experienced Attorney Is a Must for a Wrongful Death Case

Families will hire an experienced attorney to begin the process of fighting for the compensation that they may legally deserve. One significant question is who can be a part of this process. Families may not always be on the same page, especially when a wrongful death lawsuit can bring them a high amount of compensation. It is usually better to have one case brought by one attorney who can coordinate and gather the evidence they need.

Family Members Who Can File a Wrongful Death Case

Texas law dictates who may file a wrongful death lawsuit.

Specifically, the law says these people may file wrongful death claims:

  • The surviving spouse
  • Children
  • Parents

This is a limited group of people. Most notably, it does not include siblings. State law gives only 90 days for the people on the above list to file a lawsuit. If they do not file within this time, then the executor or administrator of the estate can file a wrongful death lawsuit. This includes a sibling who serves as the executor of the estate.

The law states that each of these people may bring a wrongful death action, or one person may file one case on behalf of the entire group. If multiple people bring wrongful death cases, the court will hear them as one case. In other words, a separate trial will not take place for each wrongful death case that survivors bring. Otherwise, an inefficient and possibly counterproductive process would result.

Ideally, Families Should Get on the Same Page

It is always better for a family to unify when filing a wrongful death claim. It is hard enough to go through losing a loved one, and the legal process is not easy. Therefore, harmony is the best option. If that is not possible, each person can act separately.

The best-case scenario is one lawsuit in which the family agrees on a course of action. An empathetic wrongful death lawyer can help a family unite and work together.

Consistent with this, there is no set formula in the statute for who gets what percentage of the proceeds from the case like there is in other states. Texas law is silent on the matter, unlike other states that guarantee the surviving spouse at least a certain amount of the proceeds and then give equal shares to the children. Therefore, the family will need to agree amongst themselves on how to divide the proceeds. This is always the easiest scenario.

How Families Divide Wrongful Death Proceeds

In some cases, the family is unable to reach an agreement about how to split a wrongful death lawsuit. In that case, it will be up to the jury and the court to get involved and specify an exact split of the proceeds. They will consider the specifics of each person’s situation and the damages that they have suffered in making this award to each individual who is a part of the wrongful death lawsuit.

They may consider:

  • Whether a person was financially dependent on the deceased
  • The nature and closeness of the relationship between the person and the deceased
  • The extent of the person’s emotional trauma and distress at their loss
  • Whether minor children are involved

Again, the family should work together because that will help them bring the strongest possible case. If the jury decides the split of the proceeds, the family will lose control of their financial matters, handing it over to the court to decide. As a result, anything can happen. Nevertheless, if an agreement is not possible, one must present why they deserve the damages that they claim.

The Timeline for Filing a Wrongful Death Lawsuit

In general, the family will have up to two years to file a wrongful death lawsuit after their loved one has passed (or when the family learns that a wrongful action caused their loved one’s death). However, they should not wait that long to begin the legal process.

First, they may need their settlement proceeds as soon as possible because they are beginning to feel the financial pinch from losing a contributing member of the family. Second, the legal process takes time, and it can be years before a wrongful death claim concludes.

Families take the first step towards obtaining compensation when they contact a wrongful death attorney. The claims or lawsuit process is not something that a family can or should try to handle on its own. Not only does this require experienced and technical expertise, but the family also has other priorities during this time. If the person who passed was a parent, the family must focus on the children and finding a way forward without their loved one.

The lawyer will handle all of the details of the claim or lawsuit. After the initial consultation, the lawyer will investigate the cause of death and gather evidence that can prove who was at fault. In the meantime, they may be communicating with the insurance company. More importantly, they will keep the insurance company from trying to communicate with you in an attempt to get you on the record saying something that will reduce the value of your claim.

How Families Can Win Wrongful Death Lawsuits

A wrongful death case is like any other personal injury case in many respects. Even though there is a death involved, there is the same legal standard and burden of proof as there is in other personal injury cases. You must show by a preponderance of the evidence that someone else was negligent, and it caused your loved one’s death. In other words, your case must demonstrate that it was more likely than not that someone else’s actions caused your loved one to die.

Negligence involved a four-part test. The elements of a negligence claim are:

  1. The defendant owed your loved one a duty of care (they could even have this duty just by being in the same vicinity to them on the road)
  2. They failed to uphold the duty of care because they acted unreasonably under the circumstances
  3. Your loved one suffered an injury (or died)
  4. They would not have suffered the injury had it not been for the acts of the defendant

Compensation that Families Receive in a Wrongful Death Case

If you can prove negligence, you must then show that you suffered some damages from the death of your loved one. While this seems intuitive that you have suffered legally cognizable losses, it is not anything that you can assume. You will need to prove how much you have suffered to secure compensation.

In wrongful death cases, families can receive:

  • Compensation for lost wages that their deceased family member would have earned
  • Payment for their trauma from losing their loved one
  • Money for the loss of guidance and direction from their deceased relative
  • Loss of consortium damages

How Plaintiffs Prove Wrongful Death Damages

Families will need to provide proof of all of their damages. The insurance company does not want to write a big check, nor will a jury award money unless it can quantify the damages. It seems heartless to reduce a person’s worth to a dollar amount, but families must prove the value of their loved one.

This can include:

  • Evidence about how much they make and would have earned had they lived and continued to work
  • Testimony about the nature of the relationship with the deceased and the role that they played in the lives of their family
  • Testimony about how life has been for the family after their loved one has died
  • Opinions from psychologists about the grief and trauma that the family has endured.

The Difference Between a Wrongful Death Case and a Survival Claim

In Texas, what the deceased person went through before they died and the family’s damages are two different matters. The executor of the estate or the heirs can bring a survival action to receive compensation for the damages that the loved one suffered during their lifetime. This would have been the claim that they could file had they lived. This includes things like medical bills and pain and suffering before the person died. This is different from the family’s damages after the person died.

There Are Few Limitations on a Wrongful Death Jury Verdict

Texas law only caps non-economic damages when a wrongful death results from medical malpractice. Texas does not limit the damages in other cases. Since hiring a wrongful death attorney costs a family nothing out of their pocket, you have every incentive to file a lawsuit or claim to hold the responsible party accountable.