You later discovered that your two brothers made a wrongful death claim against the trucking company. The company settled by paying them a substantial sum of money. Nobody notified you of the claim. When you contact the trucking company, its insurer tells you that only one claim can be made and that the claim has already been settled. Your brothers refuse to share the insurance proceeds with you. What can you do?
Your first step is to determine whether you have a right to recover compensation for a wrongful death in your family. In California, the deceased’s spouse (or domestic partner if the domestic relationship is registered) always has the right to pursue a claim. So do the living children of the deceased.
Other relatives may also have the right to seek compensation, particularly if they were economically dependent on the deceased victim. If you are uncertain about your right to pursue wrongful death compensation, you should get advice from a California wrongful death lawyer.
Even if you are not legally entitled to wrongful death compensation, you might be entitled to share in a survivorship claim if you were named in the deceased’s will. A survivorship claim is made on behalf of the deceased’s estate to recover damages (such as pain and suffering) that the deceased sustained prior to death as a result of the accident. A wrongful death attorney can help you understand your right to participate in a survivorship claim.
In the example described above, you have a right to bring a wrongful death claim as a child of your deceased parents. As an heir to your father’s estate, you can also benefit from the survivorship claim. But what do you do if your brothers commenced a wrongful death lawsuit without your knowledge?
No matter how many people might have the right to recover compensation, California law permits only one lawsuit to be filed against the person or business responsible for a wrongful death. All persons who may have a right to recover wrongful death compensation must be joined as parties to the lawsuit. This is known as the “one-action rule.”
In the example above, your brothers would not be allowed to proceed with the lawsuit until they added you as a party. In most cases, the defendant will identify every living relative who might have a right to participate in the claim and will insist that they be joined as parties. The risk that their lawsuit will be suspended until you are added as a party will probably motivate your brothers to notify you of the suit and to add you as a plaintiff.
In the unlikely event that your brothers file a lawsuit and win a verdict without your knowledge, California court decisions acknowledge your right to sue your brothers for failing to comply with their legal duty to join you in the lawsuit. If, however, the negligent party was aware of your existence and took no steps to assure that you were added to the lawsuit, California court decisions recognize your right to bring a second wrongful death lawsuit.
Suppose, however, your brothers did not start a lawsuit but settled their wrongful death claims without your knowledge. Does the “one-action rule” prevent you from bringing your own claim? Can you still hire a Los Angeles wrongful death lawyer and file a claim?
The California Court of Appeal ruled in 2012 that the “one-action rule” does not apply to the pre-litigation settlement of an insurance claim made by a person who misrepresented that she was the decedent’s sole heir. The court put the burden on the negligent party to identify all relatives and heirs who might be entitled to compensation. You are not precluded from bringing a wrongful death lawsuit even if your brothers settled their own claims behind your back.
If your brothers settled for the insurance policy limits – that is, the insurance company paid all the money it was obligated to pay – you might need to pursue relief from your brothers to recover your share of the insurance proceeds. In this case, however, the negligent party was employed by a trucking company, and a wrongful death lawyer may be able to obtain additional compensation from the company even after its insurance coverage has been exhausted.
Recovering compensation by bringing a wrongful death or survivorship claim becomes more complicated when more than one relative or heir has the right to bring a claim. You should always consult an experienced wrongful death attorney promptly to be sure that you receive the compensation to which you are entitled.