Answers to the Twelve Most Frequently Asked Questions in Wrongful Death Cases (1)
1. What is a wrongful death case under California law?
A wrongful death case can be maintained under California law
if a person dies as a result of the negligent or intentional
misconduct of another. The case can stem from a death caused by
any type of misconduct including accidents, malpractice or
murder.
2. Who can bring a wrongful death case?
California law designates certain survivors who are entitled
to pursue a wrongful death case. If the decedent was married,
the spouse at the time of death can bring a lawsuit. If the
decedent also had children, the children can also bring a
lawsuit.
If the decedent was married but had no children, then the
decedent's parents are allowed to bring a lawsuit.
Brothers and sisters are entitled to bring a wrongful death
action if the decedent has no surviving children or parents.
If a young child dies, the parents are entitled to bring a
wrongful death action.
The answer as to who exactly can bring a wrongful death
action in any given case can be complex; therefore, anyone
considering a wrongful death action should consult with an
attorney.
3. What if my relative lives for a period of time after the
incident and then dies?
This is called a "survival action." Whether a plaintiff
dies before or after a lawsuit is filed, their estate is entitled
to bring a survival action. In a survival action, the estate is
entitled to recover the economic losses incurred by the decedent
as a result of the incident giving rise to the lawsuit, but is
not entitled to recover for the decedent's pain, suffering and
emotional distress.
The only exception to this rule is a case in which the
estate can prove elder abuse in which case damages for pain,
suffering and emotional distress of the decedent are recoverable.
Interestingly, the estate in a survival action is entitled
to recover punitive (punishment) damages against the wrongdoer
while those damages are not recoverable in a wrongful death case.
4. When must a wrongful death or survival action be brought?
A wrongful death action, under California law, must be
brought within one year of the date of the decedent's death; a
survival action must be brought within six months of the date of
the decedent's death or within one year of the date that the
cause of action "accrued" whichever is later.
Even if the decedent had already brought a personal injury
lawsuit, a new wrongful death or survival lawsuit must be filed
within the above time periods. Also, in cases against public
entities, the case must be brought within six months of the date
of death.
5. What if one or more of the survivors who are entitled to
bring a wrongful death case decide that they do not want to
sue?
The law states that all of the potential wrongful death
claimants must be joined in one case. However, the law provides
mechanisms for survivors who do not want to pursue the case to
opt out of the case as long as there is an assurance to the
potential defendants that they are signing away their rights.
6. What if the decedent was partially at fault in causing their
own death?
California is a comparative fault state; thus, even if the
decedent was partially at fault in the incident in question, the
heirs can still maintain an action against any other person or
entity who was also at fault. However, the recovery of the heirs
will be limited by the percentage of the decedent's fault. Thus,
if the heirs are awarded $2,000,000 but the decedent is found to
be 50% at fault, the recovery will be limited to $1,000,000.
7. What are the economic damages that the survivors are
entitled to in a wrongful death case?
The survivors are entitled to the value of future monetary
contributions from the decedent and the value of any personal
service, advice or training that would have probably been given
if the decedent had lived. This is determined by projecting the
amount of money the decedent would have earned in the future but
for their death and subtracting from that the amount that the
decedent would have "consumed" on their own expenses.
8. Are the survivors entitled to recover damages for their
emotional distress?
Yes and no. Under California law, the heirs are entitled to
recover compensation for loss of love, companionship, comfort,
society, affection, solace or moral support. However, they are
not entitled to recover for grief.
9. In a case with multiple heirs, how are damages divided?
If the case goes to trial, the jury awards one lump sum of
damages to the entire family, and the judge later divides up the
award based on a number of factors including the financial
dependence of the heir on the decedent and the closeness of the
relationship between the heir and the decedent.
If the case settles, then generally the heirs have to decide
themselves how to divide the proceeds or they can seek the
assistance of a judge, arbitrator or mediator. It is sometimes
wise for the heirs to determine amongst themselves how they will
divide up the proceeds at the very beginning of the case so that
problems do not arise later.
10. Do I need an attorney to pursue a wrongful death case?
In almost every wrongful death case, the potential
plaintiffs should consult with an attorney. The law in this area
is complex as to who is entitled to bring a case and who is
entitled to a recovery, and will usually need to be sorted out
by an attorney. Further, even in a case in which the decedent
was killed by a person with a relatively low insurance policy
limit, it is wise to seek the advice of an attorney because an
investigation may reveal other potential defendants who are
responsible for the death who are more capable of paying damages.
11. Can the heirs hire separate attorneys?
The individual heirs can retain separate attorneys which is
sometimes necessary in cases in which the heirs are hostile to
each other; however, even in this situation, the heirs should
limit their hostility because it will ultimately driving down the
entire value of the case.
12. Will my wrongful death case settle out of court?
Probably. 90% of wrongful death cases settle at some point
before trial.
1. Most legal questions require complex answers. The answers
provided here may not be complete or fully accurate but attempt
to provide consumers with abbreviated answers. For more
detailed answers to these questions, a consumer should check out
other articles in this section of this web site, research other
legal articles and texts on the subject matter or consult with an
attorney.
