Car Accidents and Wrongful Death
Your Guide to California Wrongful Death Claim in Car Accidents
According to the National Highway Traffic Safety Administration (NHTSA), more than 35,000 car accident fatalities are reported in the United States every year. That equates to one death every 12 minutes. Most of these accidents are caused by motorists that exhibit negligent and/or reckless behavior on the road, such as:
- Distracted driving,
- Fatigued driving,
- Drunk driving, or
- Otherwise reckless driving.
A deadly car accident can happen in a flash, but the consequences can last a lifetime. Family members are often left asking, “Why? Why did we lose our loved one so suddenly and violently?” Besides emotional pain and mental anguish, survivors may suffer significant financial damages as well, especially if they were dependent upon the decedent for monetary support at the time of his or her death. All of these damages can add up, placing a heavy burden on those left behind.
If the negligence of another party caused a fatal car crash, the legal concept of wrongful death comes into play. Under the wrongful death statute, qualifying family members, dependents, and beneficiaries have the right to seek compensation for the loss of their loved one. However, they must first establish the three basic points of a wrongful death claim or suit:
- Another party was at fault for the death of the decedent;
- The claimant can prove their relationship to the deceased; and
- The death of the decedent will result in a pecuniary (monetary) loss for the claimant.
Proving these points requires substantial credible evidence. Unlike minor injury claims, wrongful deaths always require the expertise of a personal injury attorney with a proven track record of success in car accident fatality cases. There’s just too much on the line. The sooner you get legal representation, the better.
Understanding Common Awarded Wrongful Death Damages
No two wrongful death cases are exactly alike. How the death occurred, the losses surviving loved ones have sustained as a result, and so on – these circumstances affect what damages are awarded and how they are calculated. However, there are several types of damages that are consistently awarded to survivors. They are as follows:
- Medical and Funeral Expenses – People who sustain fatal injuries in an accident often receive medical treatment before passing. The resulting costs can be exorbitant. In addition to medical costs, there are funeral expenses to consider. Getting compensation for these damages can help survivors alleviate stress after a loved one’s death.
- Loss of Earnings – When a loved one passes, surviving family members are deprived of his or her income. If the deceased was the “breadwinner,” the effects upon the family’s finances can be devastating. Economic loss experts are often brought in to calculate the deceased’s anticipated income, which is then factored into the damage award.
- Loss of Benefits – Survivors can recover the probable total value of the deceased’s benefits, including pension, medical coverage, etc.
- Care of a Child – Today, the courts recognize that the loss of a stay-at-home parent can still put a huge financial strain on the family, not to mention the emotional toll. After all, they both provide highly important and valuable services to the family, including child care, housekeeping, and other domestic services.
- Survivors’ Pain and Suffering – While these non-economic damages are not always awarded in wrongful death cases, they can be quite significant when they are granted. They are generally awarded in cases in which the survivor’s suffering goes beyond grief and includes trauma and shock.
Do you have any questions about the calculation of damages for your specific wrongful death case? If so, please don’t hesitate to contact the compassionate California wrongful death lawyers at Wilshire Law Firm for assistance. We have the financial and legal expertise required to give you a comprehensive evaluation of your case. After speaking with us, you will know where you stand and what to do to get the justice and compensation you deserve. To learn more about the services our personal injury firm provides, call us toll-free today at (866) 703-5073.
Our California Wrongful Death Attorneys Can Help
Every civil lawsuit has a statute of limitations. This is the time period within which a personal injury claim or lawsuit must be filed. The time period generally begins with the date the injury or death occurred and lasts until a specified date. In California, the statute of limitations for most wrongful death cases is two years from the date of the victim’s death.
The Discovery Rule
If your loved one was killed as a result of the deliberate or negligent actions of another individual or entity in California, then you must file a wrongful death claim within two years. What happens if you fail to file a claim within two years? You may lose your right to pursue compensation altogether.
However, there is an exception known as the discovery rule that may give you more time to file your wrongful death claim. This rule states that the statute of limitations begins from the date the cause of an illness or injury was discovered or reasonably should have been discovered, which means that you can file a claim (or a lawsuit) even after the statute of limitations is thought to have expired.
But you should be careful, because the discovery rule works both in favor of and against the plaintiff.
Quite often, the discovery rule works in favor of the plaintiff. For example, if the cause of the victim’s death was discovered one year after his or her death, then the statute of limitations begins from that date and not from the date of his or her death. This means that the statute of limitations will not run out until three years after the death of the victim, giving the plaintiff one more year to file a claim or lawsuit. In this case, the discovery rule clearly works in the plaintiff’s favor.
But sometimes, the discovery rule works against the plaintiff. For example, if a victim’s death was caused by an injury or illness that was discovered a year earlier, then the statute of limitations is considered to have begun on the day the injury or illness was diagnosed. This means the plaintiff will have only one year after the victim’s death to file a claim or lawsuit. In this case, the discovery rule clearly works against the plaintiff.
What happens if the injury that led to death was discovered and diagnosed four years before the victim’s death? In this case, the statute of limitations runs out before his or her death. However, it can be reasonably assumed that the decedent had already initiated and won a personal injury claim before his or her death.
In some states, wrongful deaths caused by product liability are subject to special limitations which state that the statute of limitations begins on the date of the victim’s death regardless of when the injury or illness arising from the use of the defective product was discovered. Some states also have a provision called ‘statute of repose’, which prohibits claims based on product liability if the product in question has reached a certain age.
It Is Possible to Delay or Suspend the Statute of Limitations
If you have run out of time on your statute of limitations, you can try to have the time limit extended in three ways: tolling the statute of limitations, having it waived by the court, and having it waived by the defendant.
You may request the statute of limitations to be tolled (delayed or suspended) in certain situations (i.e. you’re currently in jail or suffering mental health issues). This is quite common. You may request the court to waive the statute of limitations, but the court will grant the waiver only if you can meet certain conditions.
If you have lost a loved one through the wrongful actions of someone else, then consult with wrongful death attorneys before the statute of limitations expires.
Find out How Grief Support Group Can Be Helpful for You
Dealing with the death of a loved one is difficult, especially if he or she was killed in a preventable accident. You cannot believe that your loved one is truly gone, that he or she was taken away from you so suddenly. Lately, you’ve been feeling overwhelmed by loss, disbelief, and uncontrollable emotions. Some days, the physical and mental toll is so heavy that you barely function.
While grief is not uncommon among wrongful death survivors, it can take over your life if you attempt to cope all by yourself. In times like this, it is okay – no, essential – to lean on friends and/or family members for support. You may also want to consider a grief support group to assist you in coping with the death of your loved one.
What Is a Grief Support Group?
Grief support groups are made of individuals who are all coping with the passing of a loved one. They are typically organized and directed by a social worker, trained grief counselor, psychiatrist, or psychologist, whose role is to facilitate open discussion among survivors about how they’re coping with the mourning process. The idea is that members can help each other heal with support and encouragement.
The Benefits of a Grief Support Group
There are numerous benefits to going to a grief support group. The primary advantage is being able to meet and discuss your experiences with other individuals who are going through something similar and thus can relate to you better than most. Grief support groups provide safe, judgment-free spaces where, together, members can gain a deeper understanding of their grief and find comfort and companionship in solidarity.
To find a grief support group near you, ask your local hospital, hospice group, church, or other religious/community organization. You may also want to check with the funeral director that handled your loved one’s funeral arrangements. Many funeral directors will be more than happy to point you in the right direction.
Wrongful Death Attorney: How to Prove a Wrongful Death Claim in California
A wrongful death claim is one in which close family members or heirs of a decedent seek monetary compensation from the person or entity who allegedly caused the death. In order to win the claim, the plaintiff (the person filing the claim) must prove with evidence that the defendant was indeed responsible for the death of the deceased person through negligence.
What must the plaintiff prove?
A wrongful death claim has four elements, each of which the plaintiff must prove with evidence. They are as follows:
- Negligence: Negligence can be described as the failure to take reasonable care to avoid causing injury or loss to another person. Anyone who causes injury or death to another person is liable for penalties and damages. The plaintiff must prove that the wrongful death of the decedent was caused partly or wholly by negligence of the defendant.
- Breach of duty: A breach of duty occurs when an individual or entity owes a legal duty of care towards another individual, but fails to perform that duty to an acceptable standard. The plaintiff must prove that the defendant breached his or her duty and that breach of duty caused the wrongful death.
- Causation: Causation is the actual cause of death or injury. It can be any action (or inaction) committed by the defendant. The plaintiff must prove that a certain action (or inaction) of the defendant directly caused the wrongful death of the decedent.
- Damages: These are the quantifiable losses incurred by the plaintiff as a result of the death of the decedent. The plaintiff must prove, by producing documentary evidence (such as medical bills, funeral and burial costs, and pay slips), that the death of the decedent caused him or her damages.
What evidence must the plaintiff produce?
Proving the four elements of a wrongful death claim discussed above is not easy. The plaintiff must produce evidence, eyewitness testimony, and expert witness testimony. The evidence needed to prove a wrongful death claim may include death certificate, police reports, medical reports, autopsy reports, toxicology report, and evidence of relationship between the negligent party and the victim.
- Death certificate: The decedent’s death certificate can provide an accurate picture of the exact cause of his or her death. Since it is verified by the coroner, it is often accepted as the final word in deciding what caused the death.
- Police report: If the death occurred in an event that required police response, then the report prepared by the responding police officer will be valuable evidence. This report is often accepted by the jury as the final word in deciding who caused the death. The report is available online or can be ordered via mail.
- Medical reports: The medical reports of the decedent can prove the extent and source of the injuries the decedent sustained.
- Autopsy report: An autopsy is a post-mortem examination of the deceased’s body to discover the cause of death of the extent of injury or disease.
- Toxicology report: A toxicology report is the result of lab procedures to identify and quantify potential toxins in the body. If a lethal medication or substance is suspected to be the cause of death, then a toxicology report will provide evidence of that.
- Evidence of the relationship between the victim and negligent party: To prove that the defendant was negligent in performing his duty, the plaintiff must show that the defendant owed the deceased a duty of care. For example, the relationship between a driver (the defendant) and a pedestrian (the plaintiff).
Proving a wrongful death claim is not easy. It requires a lot of research, hard work and understanding of the legal processes. This is why you need an experienced wrongful death attorney to handle your case. Once hired, he or she can take care of everything, leaving you free to grieve over your loved one’s death.
A California Wrongful Death Lawyer Can Help
Have you lost a loved one in an accident? You are not alone. Every year, thousands of people are killed in motor vehicle crashes and other accidents. If your loved one’s death was caused by the reckless, careless or negligent actions of someone else, then contact a wrongful death lawyer to seek justice for him or her.
A wrongful death lawsuit is a civil lawsuit which seeks compensation from the guilty party for the survivor’s losses, including loss of companionship, medical bills, loss of future earning capacity, and funeral expenses. Even if a defendant is exonerated in a criminal case, he or she can still be held liable for damages in a wrongful death lawsuit.
What are the types of damages you can seek?
‘Damage’ is the term that personal injury lawyers use to mean a sum of money claimed by or awarded to a plaintiff in compensation for a loss or injury. In the event that a loved one is killed in an accident, you can seek the following damages from the guilty party.
- Economic damages: These are the financial losses suffered by the family members of the deceased. They include medical expenses, funeral expenses, loss of earnings, etc. They can even include loss of services and goods provided by the deceased while he or she was living. The claims should be substantiated by documentary evidence, such as hospital bills.
- Non-economic damages: These are the non-financial losses suffered by the family members of the deceased. They include pain and suffering, loss of companionship, loss of consortium, and loss of protection, care and guidance, etc. The monetary value of these losses is often determined using a special formula.
- Punitive damages: These are the damages that are awarded to punish the individual or entity that caused the death, whether deliberately or through negligence. Punitive damages are rarely awarded; but if you can prove that the guilty party caused the death by deliberate action or egregious negligence, then you may ask the court to award these damages to you.
Who can file a wrongful death lawsuit?
Under California law, only a legal heir of the deceased can file a wrongful death lawsuit and recover the damages. The heir should be identified in the code section CCP Section 377.60. A legal heir may not necessarily be the surviving spouse or children of the deceased. In case a person dies intestate, i.e. without a will, his or her heirs are determined according to the laws of the state. Only those individuals named as heir can file a wrongful death lawsuit. In general, the people who can seek damages include spouse, children and sometimes parents of the deceased.
What’s the statute of limitations for a wrongful death claim or lawsuit?
The statute of limitations is the period within which a claim or lawsuit must be filed. The statute of limitations for filing a wrongful death claim or suit varies from one state to another. In California, there are at least three statute of limitations:
- In most situations, the statute of limitations is two years from the date of injury or death.
- If the death was caused due to medical malpractice, then the statute of limitations is three years from the date of death or one year after the discovery of injury that led to death.
- If the death was caused by government property, such as a fire truck, which are usually protected by sovereign immunity, then the statute of limitations is six months from the date of injury or death.
How to file a wrongful death lawsuit?
If you are not planning to represent yourself in the court (which you shouldn’t if you are not well-acquainted with the legal processes), then your lawyer will file the lawsuit on your behalf. He will gather all the necessary information and evidence to win the lawsuit (a process called ‘discovery’), talk to the witnesses and speak on your behalf in the court. Before the lawsuit goes to trial, he may try to negotiate an out-of-court settlement with the defendant.
As your designated representative, your wrongful death lawyer will fight until the lawsuit reaches its conclusion. He will work hard and use all his knowledge and skills to win a verdict in your favor. This is why you should carefully select your lawyer.
How Long Do Wrongful Death Cases Usually Take?
A Wrongful Death Case Can Take Years to Resolve
Have you lost a loved one due to the negligence of another party? You may be entitled to seek compensation by pursuing a wrongful death claim or lawsuit. If liability in your case is clear cut, you may settle your claim with the insurance company in no time at all. However, if the cause of the accident or the amount of compensation due is unclear, your case may take months or even years to resolve.
Investigating Cause and Determining Damages
In order to establish cause and liability for your claim, you will need an attorney to conduct a thorough investigation of the circumstances surrounding your loved one’s death. If the police found proof at the site of the accident that makes it clear who was at fault, the investigation may proceed rapidly. However, if your case is more complex and fault cannot be easily placed, an accident reconstruction engineer and other experts may be needed to establish the facts, which might take a significant amount of time to complete.
Determining the amount of damages that family members are entitled to receive can also take time. Some categories of damages, such as medical and burial expenses, are usually calculated without much trouble. However, disputes are likely to arise when more complex damages, like lost earnings and loss of care and companionship, come into the picture. Your lawyer may need to consult with an economist to calculate the total value of your damages.
When the evidence is virtually indisputable and liability is clear, the insurance company has little motivation to take a case to trial. Since they are in a weak bargaining position, they might want to expedite the settlement in order to get the claim off their books. They might also want to quickly close the deal in order to avoid a large payout.
In other cases, it may be in the insurance company’s interests to delay settlement. If liability is unclear or the evidence suggests that the decedent was partially at fault, they may want to hold out until their experts provide a different estimate of the damages. Or, they may delay simply to wear down family members until they are ready to accept a lower offer.
A Lawsuit May Produce a Long Delay
If you decide to file suit, your case may be extended by several months or even years since the court will probably hold several hearings before the case is ready for trial. If your case is handled by a busy court with a congested calendar, expect a long delay before your case is finally heard by a jury.
An Attorney Can Help
If you decide to settle your wrongful death claim without legal representation, you will likely be lowballed by the insurance company. To ensure that you receive full and fair compensation for your loss, consult with the experienced California wrongful death attorneys at Wilshire Law Firm. In a FREE case evaluation, we can provide you with a comprehensive understanding of your rights and legal options, so you know where you stand. Call us today at (866) 703-5073 for immediate assistance.
How Social Media Can Impact Your California Wrongful Death Claim
These days, people post everything they do on social media sites like Facebook, Twitter and Instagram. While it is fun to share photos, activities, plans, ideas and thoughts with real and online friends, you may not have given due consideration to the fact that they can land you in big trouble. If you are pursuing a wrongful death claim, then your social media activities may even ruin your chances of success.
Social Media Posts Can Be Used as Evidence
You and your friends are not the only ones who use social media. Everyone uses them these days, including law enforcement agencies, businesses, insurance companies and the courts. The contents of your social media pages can be used as evidence in the court of law and usually against you, as any wrongful death lawyer will tell you.
Social media can impact your wrongful death claim primarily for two reasons:
- They are discoverable: Whatever you post on your social media page is discoverable, which means everything you post on your social media pages can be collected and used as evidence by the opposing party in the court of law. If there is a video that shows you happily playing golf with your friends on the day after your wife’s death, then it may be used to show that you were not a grieving husband.
- They can be misconstrued: Whatever you post on your social media page case can be misconstrued, which means the opposing party can twist the meaning of your post to suit their own purpose. If there is a photo of you enjoying a coffee break with an attractive co-worker dated a month before your spouse’s death, then it may be used to suggest that you were having an affair when he or she died.
Posts that May Affect Your Wrongful Death Claim
Any kind of posts on your social media page can be used to cast doubt on your version of the story in a lawsuit. But there are basically two types of posts that can ruin your wrongful death claim:
- Photos, videos or status updates that contradict what you have stated in your claim: For example, a video on your Facebook page that shows you dancing happily at a friend’s wedding party just a few day after the death your spouse while you have claimed that his or her death has left you completely devastated.
- Photos, videos or status updates that show you admitting liability (whether deliberately or inadvertently) or wondering whether you were fully or partially to blame for the death: For example, a Facebook status update that says, “Whatever the circumstances leading to my dear wife’s death, my conscience says that I am partially to blame for the accident.”
While some courts may find status updates (written posts) inadmissible, such as the one given in the example above example, it would be difficult for even the best wrongful death lawyer to dispute the hard evidence provided by photos and videos.
How to Protect Yourself on Social Media
When your wrongful death claim is underway, you should take extra precaution to ensure that your social media activities will not affect it negatively. Remember that once you post anything, it may be copied and shared by others and thus may remain in the internet even if you delete it from your own page. Here are some suggestions:
- Do not post anything related to your wrongful death claim, such as comments about the accident, financial details of the claim, and negative comments about the defendant.
- If your social media setting is ‘Public’, change it to ‘Private’.
- Disallow yourself to be tagged in photos, videos and comments posted by other people.
- Block applications that automatically share the information posted in social media.
- If you want to be extra cautious, then deactivate your social media accounts and don’t reactive them until the conclusion of your case.
The bottom line is that you must exercise extreme caution when using your social media; not only when you have a wrongful death claim going on, but at all times. Talk to an experienced wrongful death lawyer for more information about this important issue and more.
How Settlements are Determined in Wrongful Death Cases?
There are multiple factors which affect a wrongful death settlement. A case can be worth anywhere from thousands of dollars to millions. Most fall somewhere in between.
It’s difficult to assign a value to a wrongful death case because every wrongful death case is different. Compensation for a claim or lawsuit is influenced by the circumstances surrounding the case.
Wrongful death attorneys consider numerous facts when recommending a settlement. Read this article to get an understanding of those facts. Also, keep in mind that the quality of your legal representation will be the primary factor influencing your settlement. Attorneys who specialize in wrongful death cases and have a successful case history are more likely to net you an optimal settlement than those who have little experience handling such cases.
The Decedent’s Age and Income
Lost income is one of the primary damages in a wrongful death settlement. If a victim was providing financial support for a family prior to his or her death, the income that family will lose is critical to a wrongful death calculation.
Wrongful death lawyers consult with actuaries and economists to calculate the value of the lost income that the victim would have contributed to the family over the course of his or her life. Two factors are important to that calculation: the victim’s age along with his or her occupation and income. Generally, the younger and better paid the decedent was, the higher the settlement will be. For instance, the settlement for the wrongful death of a 35-year-old surgeon is likely to be higher than the settlement for a senior citizen who retired after a lifetime of working as a custodian.
California State Law
Unlike some other states, California does not impose a limit (or “cap”) on the non-economic damages that can be awarded in a wrongful death case. While surviving family members cannot recover damages for the grief they have suffered as a result of their loved one’s death, they may pursue compensation for the loss of companionship, emotional support, and guidance that the decedent would’ve provided were he or she still alive.
There are other, more intangible factors that can influence the value of a wrongful death case. Are the witnesses likeable? How strong is the evidence? Was the victim partially at fault for the accident that caused his or her death? If so, what is his or her percentage of fault? Only an experienced wrongful death lawyer can provide the answers to these questions and ensure that your claim retains a strong foundation.
We Treat Clients like Family
If you have lost a loved one in an accident caused by another party, please don’t hesitate to contact Wilshire Law Firm for legal assistance. Our compassionate and hardworking legal team always puts clients first. We will do everything possible to make you feel comfortable and secure, and fight aggressively to get you the compensation and justice you deserve. To learn more about your rights and options in a FREE consultation, call us today at (800) 522-7274.
Wrongful Death Lawyer California: Survival Action vs Wrongful Death
If you have lost a loved one in an accident caused by a negligent party and wish to pursue legal action, it is essential to know the distinctions between a wrongful death lawsuit (California Code of Civil Procedure Section 377.60) and a survival action (California Code of Civil Procedure Section 377.30), along with the elements of each type of lawsuit, including rights and qualifications.
Only certain parties are permitted to file a wrongful death lawsuit in California. The relevant statute specifies that the following parties are qualified:
- The surviving spouse of the decedent
- The surviving children of the decedent
- The personal representative of the decedent’s estate
The following people can also bring a wrongful death lawsuit, but only if they can prove that they were financially dependent on the decedent at the time of his death:
- The putative spouse and children of the decedent
- The stepchildren of the decedent
- The parents of the decedent
Damages available in a wrongful death suit include funeral and burial expenses, all past and projected future loss of earnings and support, loss of services, and loss of love, comfort, society, companionship, affection, and moral support. Punitive damages, however, are not recoverable.
If the decedent did not immediately die from his or her injuries, the estate’s personal representative or the decedent’s successor-in-interest may bring a survival action. Damages recoverable under the statute include “the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived,” such as medical expenses and lost wages, as well as punitive or exemplary damages. However, damages for pain, suffering, or disfigurement are not included.
If you are qualified to bring both types of lawsuits, you may have the option of consolidating the two distinct legal actions into a single lawsuit. Consult with an attorney to determine whether this would be the right path to take in your case.
At Wilshire Law Firm, our compassionate wrongful death attorneys treat clients like family, prioritizing their needs and goals above all. Throughout the years of our practice, we have successfully represented countless plaintiffs in wrongful death actions from car accidents, motorcycle accidents, pedestrian accidents, truck accidents, and bus accidents. To learn more about what our firm can do to get you the justice and compensation you deserve, call us today at (800) 522-7274. We offer FREE consultations.
Your Ultimate Guide to the Stages of a Wrongful Death Claim
There are several different stages and procedures in a wrongful death claim. Not every wrongful death claim necessarily culminates in a lawsuit. In fact, in certain cases, it is better to seek alternative measures of dispute resolution, since lawsuits can be time-consuming and expensive. In summary, a wrongful death claim begins with notice to the liable party or parties, and ends with litigation, arbitration, or a settlement.
What Happens During Pre-Litigation?
During the pre-litigation phase, the decedent’s personal representative fulfills important tasks and makes critical decisions in preparation of a claim:
- Consult with a qualified wrongful death attorney.
- Set up the decedent’s estate.
- The attorney investigates the case on a contingency fee basis.
- Once enough evidence has been gathered to make an informed decision as to which parties to pursue for a financial recovery, notice is sent out to those parties.
- Claimants and defendants can negotiate a settlement and avoid litigation. However, if all parties cannot come into agreement, then a lawsuit may be necessary.
Litigation (The Wrongful Death Lawsuit)
Litigation begins when negotiations end (in failure). The word “lawsuit” is typically used instead of “litigation.” The following steps are involved in a lawsuit:
- A Complaint or Writ of Summons is filed and served upon all of the defendants.
- A Response is filed by the defendant(s) within a specified time.
- Attorneys gather as much evidence as possible during the Discovery stage. Interrogatories, Request for Production of Documents, and Depositions are common in this stage.
- In the Pre-Trial stage, the judge is educated about the case, a jury is selected, and at least one conference is scheduled between the judge and the attorneys. During the conference, the judge may attempt to help resolve the case.
- During the Trial or Arbitration stage, the case is presented to a judge and jury, or an arbitrator, who decide the outcome.
- In the Post-Trial phase, one or all of the involved parties may appeal or challenge the outcome.
3 Main Elements of a Wrongful Death Lawsuit
Wrongful death survivors can claim various economic and non-economic damages with help from an attorney who has the experience necessary to properly and successfully handle their wrongful death case. However, it is crucial for survivors themselves to have a firm grasp on the three basic elements that constitute a legitimate wrongful death suit, as described below.
In order to pursue damages in a wrongful death claim, you must, first and foremost, establish the involvement of a negligent or wrongful act.
For instance, let’s say a group of people were on the deck of a hotel when it collapsed, resulting in one or more deaths. In an investigation, it was revealed that the deck did not comply with Building Code provisions – clearly an act of negligence.
Second, you must prove that the negligent or wrongful act caused the death.
We can also illustrate this element using the example of the hotel deck. In this case, the victims died due to injuries sustained in the falling deck incident. Since shoddy construction led to the collapse, it could be asserted that the negligence of the contractor and/or the hotel owner directly contributed to the fatal injuries of the victims.
Last but not least, you must establish the extent of the damages you have suffered as the result of your loved one’s death in order to obtain full and fair compensation. These damages can include:
- Funeral and medical expenses
- Loss of financial support (loved one’s earnings prior to death)
- Loss of household services
- Loss of love, companionship, moral support, etc.
It is important that you consult with a trustworthy wrongful death attorney as soon as possible – before vital evidence fades, before the statute of limitations expires. The sooner a qualified legal professional gets started on your case, the better chance you’ll have at maximum recovery.
Knowledgeable Wrongful Death Attorneys Explain
Everyone goes through the pain of losing a loved one. But when you lose a family member in an accident, then your suffering becomes more painful and long-lasting. In the meantime, you will have medical bills, funeral expenses, loss of income, loss of companionship and other things to worry about. If the death was caused by the deliberate action, recklessness or negligence of someone (or some entity), then you can file a wrongful death claim or lawsuit to recover the damages.
The Meaning of Wrongful Death Damages
Damage is the term used by wrongful death attorneys for a sum of money claimed by or awarded to a plaintiff (the person who has filed a claim or a lawsuit) as compensation for the death of his or her loved one. Wrongful death damages are awarded to the family members of the deceased to compensate for the financial and emotional losses they have suffered as a result of the death of their loved one.
The damages are paid by the defendant’s insurance company, as it happens in most cases, after a mutually satisfactory settlement has been reached between the plaintiff and the defendant, or, if the lawsuit goes to trial, after the court has given its verdict in favor of the plaintiff and ordered the defendant to pay a certain amount of money as damages.
Types of Wrongful Death Claims
There are basically two types of wrongful death claims: general wrongful death claims and survivor wrongful death claims.
- General wrongful death claims: This type of wrongful death claim can be sought by the beneficiaries of the deceased person. They may include the victim’s spouse, children and, in special circumstances, parents. The purpose of these claims is to provide monetary compensation to the people who were financially dependent on the deceased person.
- Survivor wrongful death claims: This type of wrongful death claim can be brought if the deceased victim does not have a spouse, children or any other dependent. In most cases, an individual appointed as the personal representative of the deceased’s estate seeks the claim on behalf of the estate. The purpose of these claims is to seek justice for the wrongful death of the decedent.
How wrongful death damages are calculated
Calculating economic damages is quite straightforward. All the bills and related documents are collected and the amounts for each are added to get the total amount. But calculating non-economic damages is a different matter altogether since it can be extremely difficult to assign monetary value to abstract things like pain and suffering and loss of consortium. Lawyers often use a special formula to arrive at an estimated value. Sometimes, they may use help from economics and actuaries.
Who can file a wrongful death lawsuit?
Under California law, only a legal heir of the deceased can seek wrongful death damages. In most cases, legal heirs include spouse, children and sometimes parents of the deceased. In case the deceased person has no surviving dependent, the individual appointed as the representative of his or estate may claim the damages on behalf of the estate. In case a person is killed intestate, i.e., without a will, his or her heirs are determined according to the laws of the state.
If you have lost a loved one in an accident, then talk to experienced wrongful death attorneys to explore your best legal options for recovery.
Can I Sue for Wrongful Death in California?
In California, the people entitled to bring a wrongful death action are generally family members and dependents who would be entitled to an inheritance in the absence of a will. More specifically, the following individuals may pursue wrongful death damages:
- Spouse or registered domestic partner;
- Living children;
- Siblings and other relatives who would be entitled to an inheritance in the absence of a will, but only if there are no surviving children;
- Dependent stepchildren;
- Dependent grandchildren;
- Dependent parents; and/or
- Any dependent minor who was in the care of the deceased for more than 180 days prior to his or her death.
If there are multiple claimants, they must all join together in a single suit. Those who aren’t a part of the lawsuit when judgment is entered will usually be barred from seeking compensation. Also, all of the recipients must agree upon how the award should be divided; otherwise, the court will distribute the award in whatever manner it deems most just.
What is the Wrongful Death Statute in California
In California, the statute of limitations, or deadline, for filing a wrongful death action is two years after the date of death. If you fail to file before this window closes, you will be barred from seeking compensation.
However, different limitation periods and procedural requirements apply under certain circumstances, such as the involvement of medical malpractice or a government employee. It is highly advised that you seek legal guidance immediately to ensure that you file your wrongful death suit in time.
Can I File a Wrongful Death Suit Based on the Death or an Elderly Person?
Yes, you can. However, the calculation of damages may be different than if a financial supporter of the family had passed away. Your recovery will mostly be comprised of non-economic damages.
What About an Unborn Child?
Unfortunately, the state of California does not grant an embryo or fetus the rights of personhood, therefore parents cannot pursue wrongful death damages if their unborn child is killed.
How Long Do Wrongful Death Cases in California Take?
There is no simple answer to this question. While some wrongful death cases are settled prior to litigation, others are taken all the way to court. There really is no telling how long your case will take. It may be weeks, months, even years. You should understand from the outset that a quick resolution is not guaranteed.
How Much is a Wrongful Death Lawsuit Worth?
Determining how much a wrongful death case is worth is very difficult since there are no definite statutes or even rough guidelines saying what amount any case should be worth. An attorney can provide an estimate by consulting verdict reports from similar cases or discussing with colleagues about possible settlement values, but a mathematically certain number is nearly impossible to reach due to all of the factors that are involved.
How are Wrongful Death Claims Calculated in California?
Depending on your relation to the deceased and the extent of financial, emotional, and mental support he or she provided you, you may be entitled to recover the following damages:
- Lost financial support;
- Value of gifts or benefits;
- Funeral and burial expenses;
- Value of household services;
- Loss of love, companionship, comfort, care, assistance, protection, affection, society, and moral support; and/or
- Loss of training and guidance the deceased would have given children.
While some states advise juries to permit the recovery of damages for grief, sorrow, and mental anguish, California is not one of them.
Can Punitive Damages be Recovered in a Wrongful Death Action?
The state of California prohibits an award of punitive damages for most wrongful death cases. It does make an exception for wrongful death cases involving defendants who were convicted of felony murder, though the gesture is mostly symbolic since most individuals convicted of felony murder do not have the resources to pay large judgments.
There are other particular circumstances which allow the recovery of punitive damages in wrongful death cases. Speak with an experienced wrongful death attorney for more information.
Call Wilshire Law Firm today at (800) 522-7274 to speak with a legal professional about your wrongful death claim or suit. We offer free, comprehensive consultations. With our help, you can get the compensation that’ll alleviate your financial struggles, allowing you and your family to focus on mourning and finding peace.
How a Wrongful Death Attorney Can Help You Win
Since hundreds of thousands or even millions of dollars are usually at stake in wrongful death cases, it is important to retain the services of an attorney who has the training and resources to thoroughly investigate and win your case. The right wrongful death lawyer will:
- Hire investigators, accident reconstruction specialists, medical experts, and other relevant professionals to prove the other party’s liability and establish the full extent of your damages;
- Collect vital evidence, such as photos, video footage, witness statements, police and medical reports, etc., AND prevent insurance companies, individuals, and government agencies from destroying or erasing key evidence; and
- File a lawsuit and fight aggressively in court if negotiations for a full and fair settlement don’t work out.
If you have lost a loved one in a car accident caused by another party, please reach out to the experienced California wrongful death lawyers at Wilshire Law Firm for immediate legal assistance. We can help you get compensation for medical and funeral expenses, lost potential earnings, pain and suffering, and more. However, don’t delay – in California, the deadline to file for wrongful death, also known as the statute of limitation, is two years in most situations. Don’t surrender your right to obtain justice. Call us today at (800) 522-7274 and let us get started on your case.