Understanding a Wrongful Death Claim

Posted on July 11, 2012 by John Demas

When you combine all that with the added pain that is felt when a loved one’s death was caused by someone else’s negligent or even intentional behavior, the anguish is almost unimaginable and can leave entire families languishing in despair.

Proving wrongful death

In California, the official definition of a wrongful death is one that occurs “when a person dies due to the negligent, careless, intentional or reckless act of another person or entity.” While nothing can replace the life that has been so cruelly snatched away, those left behind do have certain legal means available to them to ensure they don’t suffer long-term financial difficulties on top of the emotional trauma already experienced.

To prove a wrongful death claim requires an almost unfair level of attention to the case from as soon after the fatal incident as possible. Beyond any doubt whatever, anyone in California contemplating a wrongful death lawsuit should make it their first order of duty to find an experienced and reputable wrongful death attorney, someone who can act quickly to preserve vital evidence and identify all possible defendants. These are two essential elements in proving a wrongful death claim.

Not everyone can file a claim

Only certain individuals related to the victim can file a wrongful death lawsuit in California. Ask your attorney if you’re in any doubt, but as a rule, only the following (in order of priority) can make a wrongful death claim:

  • The victim’s surviving spouse
  • Children of the victim
  • Dependent stepchildren
  • Dependent minors who lived in the victims house for a minimum of six months before the injury occurred that led to the victims death
  • Dependent parents

If no one who survived the victim falls into any of the categories listed above, then under laws of intestate succession, the following potential heirs of a victim’s estate may be entitled to make a wrongful death claim:

  • Parents, even if they were not dependent on the victim
  • The victim’s siblings
  • Children of deceased siblings, if no siblings are alive
  • Grandparents of the victim
  • Children of a deceased spouse
  • Failing all of the above, the next of kin can also file a wrongful death lawsuit.

Clearly, this is a complicated area and another reason it’s a good idea to retain an experienced attorney. Simply having a knowledgeable lawyer dealing with the case can prevent a great deal of “in-fighting” and bad blood between members of the victim’s extended family.

Choosing the right attorney is vital

Wrongful death lawsuits require an inordinate amount of skillful preparation, investigation and presentation if they are to succeed. Insurance companies who may be joined in a wrongful death lawsuit will vigorously defend such claims due to the potential for extremely large awards.

An experienced wrongful death attorney will help you make a number of difficult decisions and deal with complex legal issues, including:

  • Deciding whether or not to create an estate to make the wrongful death claim. If a large number of claimants are involved in a single case, it can be better to create a probate estate instead of suing through a number of individual heirs, but this decision requires thorough analysis before being made.
  • Using expert testimony to establish the victim’s life expectancy. This requires an almost forensic examination of details relating to the victim including their age, health before the incident, activities, lifestyle and occupation.
  • Getting specialists to determine the amount of lost financial support is being suffered by the claimant. This will require complex calculations which factor in the victim’s employment history, past wages and expected future wages including commissions, bonuses, pension, etc.
  • How do you put a monetary value on the loss of companionship, society and comfort when you lose a spouse? No formulas or precise rules exist, so when it comes time for a jury to decide, it will almost totally depend on the skillful presentation and persuasive powers of the attorney you’ve selected to represent you. Choose the very best lawyer you can find, because that’s exactly what the insurance company will do.
  • Actually proving the liability of the at-fault party and explaining the reasons for the damages being sought are also down almost exclusively to the skills, experience and persuasive tactics of your attorney.

What kinds of damages can be recovered?

In California, juries are allowed to take a number of factors into consideration when deciding on a dollar amount in a wrongful death lawsuit. In general, compensation for economic losses can be based on:

  • The financial support the victim would have contributed to the claimant for the duration of the life expectancy of either the victim or the heir, whichever is the shorter
  • The loss of benefits, including gifts, that the claimant could reasonably have expected to receive from the victim
  • Funeral and burial expenses
  • The reasonable value of the household services that the victim could have reasonably been expected to provide to the heir

California juries are also allowed under law to award monetary compensation for certain non-economic losses in a wrongful death claim, including:

  • The loss of love, companionship, comfort, care, assistance, protection, affection and society
  • The loss of the enjoyment of sexual relations, if applicable
  • The loss of the training and guidance of the victim, if applicable

Finally, punitive damages may also be awarded in certain instances, like if the victim survived the incident, even briefly, before their death, or if the victim’s property was damaged or lost before they died.

What a jury can’t consider

California juries are prohibited from considering or making awards based on the grief, sorrow or mental anguish of the claimant. They are also not allowed to take into consideration how much money the claimant has or hasn’t got.

Clearly, a California wrongful death claim is a legal minefield, full of booby traps and pitfalls, and it’s an area into which no inexperienced person should travel. However, a wrongful death lawsuit may be your absolute entitlement if a loved one was taken from you through another’s negligence or deliberate act. In addition, you and the rest of the family that has been left behind may need the compensation that can be gained from a wrongful death lawsuit just to survive the years that lie ahead.

Do not delay. If you are considering making a California wrongful death claim, contact a vastly experienced Sacramento wrongful death attorney for a free consultation. They will listen to your story with a sympathetic ear, and then set about getting you and your family the compensation you need and deserve.

Main Office: Sacramento

Demas Law Group, P.C.
701 Howe Avenue, Suite A-1
Sacramento, CA 95825
Phone: (916) 444-0100 • Toll Free: (888) 776-0977

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