Losing a loved one is never easy. This is especially true if your loved one's death occurs unexpectedly and results from another person's intentional, negligent, or wrongful act. Individuals who lose loved ones in this manner may pursue a wrongful death claim or a lawsuit. Although financial compensation can never compensate for losing a family member, it can bring you and your family a sense of justice and closure.
If you recently lost a loved one because of someone else's wrongful act, speak with legal counsel about your potential legal rights as quickly as possible. An experienced wrongful death attorney in your area can explore all your legal options and determine if you can file a wrongful death claim or a lawsuit.
Your attorney can handle every step in the process, including gathering the necessary documents, filing a claim with the at-fault party's insurance company, or, if necessary, filing a wrongful death lawsuit in the court system well within the applicable statute of limitations time frame.
Your wrongful death attorney will do everything possible to maximize the compensation you and your family need and obtain the closure and justice you deserve.
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How Long Does a Family Member Have to File a Wrongful Death Lawsuit?
Under Texas's statute of limitations, an individual must file a wrongful death lawsuit within two years of their family member's death date (not the date of their fatal accident).
If a person fails to file their wrongful death lawsuit within this statutory period, they forever waive their right to file a lawsuit in the future and recover monetary compensation for the loss of their loved one. If the individual files a lawsuit in court, the defense attorney will quickly move to dismiss it.
To ensure that you file a wrongful death lawsuit promptly, seek out experienced legal counsel to represent you as quickly as possible. Your wrongful death attorney will know the statute of limitations deadline that applies to your case and can file a lawsuit immediately if the statutory time frame is running short. Your lawyer can take charge of all settlement negotiations with insurance company representatives and navigate the litigation process when necessary.
Tolling the Wrongful Death Statute of Limitations
In certain situations, the wrongful death statute of limitations may not start running until a subsequent date. Alternatively, the statute of limitations may pause at some point. When either of these occurs, the statute of limitations tolls. In this situation, an individual may have more than two years after the loved one's death date to file a wrongful death lawsuit.
Tolling the wrongful death statute of limitations may occur if:
- The individual filing the wrongful death lawsuit is incapacitated, either mentally or physically, in some way
- The negligent action or inaction that caused your loved one's death was not clear or obvious
- You were a minor when you lost your parent, in which case the wrongful death statute of limitations does not start running until you reach eighteen years of age
- The party that caused your loved one's untimely death intentionally concealed their negligence or involvement, which means the statute of limitations does not start until you discover the fraudulent concealment.
A skilled wrongful death attorney in your area can review your circumstances with you and determine if the statute of limitations might toll in your case. If so, they can determine the deadline by which you must file a wrongful death lawsuit in state court.
Evidence Preservation
The statute of limitations is not the only time-based concern you have when considering a wrongful death claim. You need sufficient evidence to prove liability for a wrongful death, and such evidence will not last forever. You want an attorney to gather evidence before others or time destroys, loses, or weakens it.
Give your attorney ample opportunity to build a strong case by starting the process as soon as possible. Starting a legal claim while still grieving might seem stressful, but legal representation will ease your stress - not add to it. You can focus on your emotional struggles while a lawyer begins the wrongful death process.
What Is the Basis for a Wrongful Death Claim or Lawsuit?
An individual may be eligible to file a wrongful death claim if they lost a loved one due to another person or entity's negligence, wrongful, reckless, careless, intentional, or even criminal act. In addition, the deceased individual must have been entitled to file a personal injury lawsuit in the court system if they had survived their fatal accident.
Some of the most common bases for a wrongful death claim include incidents based on negligence, such as premises accidents, motor vehicle collisions (including those involving bicycles, motorcycles, and pedestrians), and defective products.
Individuals eligible to file a wrongful death claim or lawsuit include the deceased individual's surviving children, spouse, and parents. Alternatively, one or more of these individuals can file a wrongful death lawsuit on behalf of all of them.
In cases where the deceased individual's surviving children, spouse, or parents do not bring a wrongful death claim within three months after the deceased individual's death date, then the estate's personal representative can file the claim. However, all the above-referenced family members can request that the personal representative does not file a wrongful death lawsuit for any given reason.
A skilled wrongful death attorney in your area can review your circumstances with you and determine if you can pursue a wrongful death claim or lawsuit to recover damages. If you are, your attorney leads you through every step in the process and works to maximize the total monetary settlement or litigation result that you receive in your case.
Burden of Proof in a Wrongful Death Case
In any wrongful death claim or lawsuit, the claimants must satisfy their legal burden of proof. Specifically, the claimant must show that the at-fault party owed their loved one a duty of reasonable care they subsequently violated.
For example, if the claimant lost their loved one in a fatal car accident, they must demonstrate that the at-fault driver behaved negligently or recklessly under the circumstances. In a fatal car accident, the other driver might have violated one or more traffic laws, drove while distracted, engaged in road rage, or drove under the influence of drugs or alcohol.
Next, the wrongful death claimant must establish that as a direct result of the other party's negligence, the fatal accident occurred and led to their loved one's untimely death. In other words, a causal connection must exist between the wrongful act and the deceased individual's death.
Sometimes, a wrongful death attorney can retain one or more experts who can testify to support a wrongful death claim. For example, if the at-fault party's insurance company disputes fault for the fatal accident, your wrongful death lawyer can retain an accident reconstructionist to testify.
An accident reconstructionist can piece together exactly how the accident happened by reviewing available camera footage, visiting the accident scene, speaking with witnesses, and reviewing medical records. The accident reconstructionist can then draft their own report about their findings and conclusions. They can also testify at a legal proceeding in the case, such as a discovery deposition or civil jury trial.
Your wrongful death attorney can lead every step in the process and retain experts who can testify in your case. Your lawyer can also address all your legal concerns and guide you to make intelligent, informed decisions every step of the way.
Settling or Litigating a Wrongful Death Case
In most wrongful death claims and lawsuits, your wrongful death attorney will deal with the at-fault party's insurance company.
Reaching a favorable settlement in a wrongful death case is sometimes an uphill battle since most insurance companies are not truly interested in fairly compensating accident victims for their injuries. Rather, insurance companies want to pay out as little settlement compensation as possible in a wrongful death claim, allowing them to keep as much money in-house as possible.
To accomplish this goal, many insurance company adjusters will contend that the accident or occurrence was not the actual cause of the deceased individual's untimely death. They might also argue that the deceased individual had other pre-existing medical conditions that brought about their death, as opposed to the at-fault party's wrongful act.
Your attorney handles all dealings with insurance company representatives and all oral and written communications. Your attorney can also recover favorable monetary compensation in your wrongful death claim by highlighting the strengths of the case, retaining helpful experts, and, if necessary, filing civil litigation.
Sometimes, the threat of litigation encourages insurance company adjusters to take the case more seriously and make a favorable monetary offer. Litigation can cost a lot of money for everyone involved in the case, including insurance companies. Your wrongful death attorney can review a pending settlement offer from the insurance company and advise whether to accept the offer or consider filing a lawsuit and litigating your case in court.
Litigating a Wrongful Death Case in Court
Wrongful death litigation begins when a wrongful death lawyer files a lawsuit on the claimant's behalf in the state court system. However, merely filing a lawsuit in court does not guarantee that a wrongful death case will proceed to trial. In fact, most wrongful death lawsuits settle at some point before any trial proceedings.
During the litigation stage of a wrongful death case, the parties will typically exchange documents, answer one another's written interrogatories, and take discovery depositions. In some cases, the defense attorney representing the at-fault individual or entity may schedule a discovery deposition.
Your wrongful death attorney can prepare for your deposition and anticipate the questions the defense attorney may ask. Your lawyer can also attend all legal proceedings in the court with you, such as settlement conferences.
If your wrongful death lawsuit does not resolve at a settlement conference, you can take your case to a civil jury trial. The downside of a civil jury trial with a wrongful death case is that the accident victim cannot testify in live court and describe their version of events.
However, your attorney can introduce other evidence, including medical records and expert testimony, to increase your chances of a favorable monetary verdict. The jury will then deliberate to decide the final verdict in your case.
Instead of taking your wrongful death lawsuit to trial, your attorney can pursue various alternative dispute resolution (ADR) options. Those options may include mediation or binding arbitration with a neutral, third-party arbitrator. At an arbitration proceeding, the parties will present evidence at a hearing out of court. The arbitrator will then decide the case's outcome within certain preset monetary parameters.
Your attorney can determine whether settlement or litigation is the better option for your wrongful death case.
Available Monetary Recovery in a Wrongful Death Case
Wrongful death claimants may recover compensation for:
- Loss of the decedent’s financial support
- Loss of the decedent’s care, companionship, and comfort
- Loss of an inheritance or savings
- Mental distress that they experienced after their loved one’s untimely death
- Loss of the deceased individual’s household services.
Speak With a Wrongful Death Attorney in Your Area Right Away
If you recently lost a loved one in an occurrence that resulted from someone else’s negligent, intentional, reckless, or careless act, you may file a wrongful death claim or lawsuit for various damages. A skilled personal injury attorney in your area can determine your eligibility for filing a claim and pursue the compensation you need to attain justice and closure for yourself and your family.