A wrongful death can be caused by a drunk driver, a careless surgeon, a defective product, or any other negligent or intentional conduct.
Every state permits recovery of compensation for a wrongful death but the laws governing these claims vary depending upon the state in which the incident took place.
Different states have different regulations about the people who are permitted to recover damages for the loss of a loved one. Some states limit the amount of compensation that can be recovered.
Most states draw a distinction between an estate’s right to recover losses to the estate and an individual’s right to receive damages for the loss of a relative.
This guide will explain the laws pertaining to these types of cases, giving particular attention to the State of California.
What is a wrongful death?
In general terms, a wrongful death lawsuit occurs when one person is responsible for the death of another and has no lawful excuse for causing it.
As it is defined by California state law, a wrongful death is a fatality caused by “the wrongful act or neglect of another.”
A “wrongful act” that causes someone’s demise includes murder, manslaughter, and other deliberate or reckless conduct. California courts follow the majority rule that a justifiable homicide (such as a killing in self-defense) is not a wrongful act.
When a fatality is caused intentionally, as in the case of murder, a wrongful death claim falls under the umbrella of intentional torts.
Since insurance generally does not cover losses caused by intentional torts, most people do not pursue a wrongful death that is caused intentionally unless the person being sued (as in the case of O.J. Simpson) has enough wealth to pay a substantial judgment.
An individual can be held responsible for the demise of another if that individual’s negligent conduct was a substantial factor in causing the death.
Negligent conduct means conduct that was careless.
Most of these claims are brought against people who cause accidental deaths while driving carelessly.
Example of careless driving include running a red light, driving at an unsafe speed, or dialing a cellphone instead of watching the road.
A negligent driver’s automobile liability insurance will cover claims made up to the policy limits.
Some drivers have additional insurance (such as umbrella coverage provided by a homeowner’s policy) that can also be used to pay compensation for a loss caused by negligent driving.
Failure to maintain safe premises
Homeowner’s insurance and premises liability insurance typically provides coverage for wrongful death claims that result from negligence in a home, store, or commercial or residential building.
People who invite others into their homes and business owners who open their stores or offices to the public have a responsibility to keep the premises safe. If a deadly fall could have been prevented by replacing a missing handrail or if an electrocution results from faulty wiring, the property owner or manger can be held responsible.
A wrongful death can be caused by a physician’s failure to diagnose a condition that could have been treated, such as cancer, or by a surgeon’s error during an operation.
It can also be caused by prescribing an unsafe combination of medications or by a hospital’s administration of the wrong medication. Any act of professional negligence that falls below acceptable standards of care within the deceased’s community can make a health care provider responsible.
It is highly advised to seek out professional help from the best medical malpractice attorney if you or your loved one has suffered due to the negligence of a doctor.
Many people have died because a pharmaceutical company rushed an unsafe drug to market without testing it thoroughly.
Others have died after consuming tainted food that was improperly prepared or not adequately inspected.
Additional examples of unsafe products include vehicles and machines that are poorly designed or manufactured with a defect.
A products liability lawsuit can result from the loss of a loved one when the fatality is caused by negligence in the design, manufacture, or testing of a product.
Sometimes death results from exposure to a toxic substance over a period of time, such as asbestos.
Many states have enacted specific laws governing lawsuits related to wrongful deaths arising from exposure to a toxic substance or chemical.
You should consult a California wrongful death lawyer who has experience handling those cases if you suspect that your loved one’s demise was caused by environmental exposure to chemicals or other harmful substances.
In several states, a suicide can be considered a wrongful death caused by another person if that person had a special duty of care toward the deceased and if that person’s negligence was a substantial factor that caused the suicide.
For example, when a therapist or school counselor should have recognized the warning signs of a potential suicide but ignored them, that person might be liable.
In a few states, including California, a claim can be based on extreme behavior (such as ridicule) that creates severe emotional distress and leads to suicide.
Compensation for the accidental demise of an employee while working at a job is usually regulated by worker’s compensation laws.
If a fatality at work is caused by a third party (a careless delivery driver, for example), wrongful death laws may apply.
Your lawyer can help you sort out which law applies if your loved one was killed at work.
What is a wrongful death lawsuit?
State laws allow certain people (usually heirs and/or close family members) to bring a claim for compensation for their losses that resulted from another person’s wrongful death.
The claim can be pursued in court by filing a lawsuit against the person or persons who caused the fatality.
In some states, it is also possible to sue that person’s insurance company. In other states it is the responsibility of the person who has been sued to notify that person’s insurer.
A wrongful death lawsuit is a civil action. It differs from a criminal prosecution for homicide or manslaughter, which is brought by the government in order to punish a wrongdoer.
Civil actions cannot seek imprisonment or other punishment as a remedy for wrongful conduct. Instead, they seek an award of monetary damages to compensate for a loss.
The only exception to this rule arises in states that permit the award of punitive damages in a wrongful death lawsuit. Punitive damages are discussed in more detail below.
What is a survivorship claim?
While a wrongful death claim compensates individuals for their losses due to another person’s demise, a survivorship claim compensates the deceased’s estate for losses or expenses that the deceased incurred prior to passing as a result of the wrongful or negligent conduct that caused the death.
Ambulance fees, medical expenses, and loss of earnings during hospitalization are examples of the damages that can be pursued in a survivorship claim.
Some states permit an estate to seek damages for the deceased’s pain and suffering prior to death in a survivorship lawsuit, but California does not.
An exception to the California rule may exist, however, if the loss was caused due to abuse or neglect in a nursing home or other dependent care facility.
Damages that the personal representative of an estate recovers by bringing a survivorship claim become the property of the deceased’s estate.
The personal representative distributes those damages to the deceased’s heirs according to the terms of the deceased’s will or, if there is no will, pursuant to state law.
Expenses the estate incurs as a result of or after death, such as funeral and burial expenses, must usually be brought as part of a wrongful death claim rather than a survivorship claim. Although the two kinds of claims are legally distinct, they are often joined in the same lawsuit.
Who is entitled to seek compensation?
The law of every state limits the categories of people who can sue for wrongful death.
All states allow a spouse to seek compensation for the other spouse’s demise.
All states allow a minor child to seek compensation for the loss of a parent.
In some states, additional relatives are allowed to seek damages if they were financially dependent on the deceased.
Other states permit parents, siblings, and even grandparents who were raising a deceased grandchild to seek compensation, regardless of their financial dependence upon the deceased.
In California, the people entitled to bring a claim are generally those who would be entitled to inherit from the deceased in the absence of a will, as well as the personal representative of the deceased’s estate.
More specifically, the following individuals can bring a lawsuit in California:
- The deceased’s spouse.
- The deceased’s domestic partner if the domestic partnership was registered.
- The deceased’s living children.
- The children of any child of the deceased if that child is no longer living.
- If the deceased had no surviving children, siblings or other relatives who would have inherited from the deceased if the deceased had died without a will.
- The surviving spouse of a void marriage with the deceased if the spouse believed the marriage was valid and was dependent upon the deceased for support.
- The deceased’s stepchildren if they were dependent upon the deceased for support.
- The deceased’s parents if they were dependent upon the deceased for support.
- Any minor who lived with the deceased for more than 180 days prior to the deceased’s death and who depended on the deceased for at least one-half of his or her support.
Even if people who are not listed above are named in the deceased’s will, those people are not entitled to pursue wrongful death compensation in California.
For that reason, a survivorship claim (which benefits everyone named in a will) may result in the distribution of damages to more people than a wrongful death claim.
In most cases, however, the damages available in a wrongful death claim are more substantial than the damages that can be awarded in a survivorship claim.
In California and in most other jurisdictions, the loss of a fetus does not give rise to a wrongful death claim.
In the absence of a live birth, a pregnant woman is not regarded as a parent.
Some states have enacted laws that permit an action to be based on the death of a fetus. In states that do not allow wrongful death compensation for a lost pregnancy, a woman who was carrying a fetus can usually seek personal injury damages for conduct that harmed her body and in turn caused the death of a fetus.
As is true in most jurisdictions, a death in California can give rise to only one wrongful death lawsuit.
Each person who may be entitled to compensation for their loss must be made part of that lawsuit.
As a general rule, any person bringing the suit must join all other persons who may be entitled to compensation unless those persons “opt out” by seeking dismissal from the suit.
Any person who is not a party to the lawsuit when judgment is entered will usually be barred from seeking compensation.
What compensation can be awarded?
Calculating compensation requires a full professional analysis. In addition to losses to the estate that can be pursued through a survivorship or wrongful death claim, people who are entitled to sue can seek compensation for their own losses.
Some of those losses are financial while other losses are emotional, such as the loss of the deceased’s love and companionship.
Some states place “caps” or limits on the damages that can be awarded in these cases, particularly damages for emotional losses.
Those states fear that juries will be unduly sympathetic to the spouse or children who lost a loved one and will award them unreasonably large amounts of compensation in the absence of legislation that limits their discretion.
Other states trust juries to follow the law as it is reflected in jury instructions. Juries are generally instructed not to be swayed by sympathy or their own emotions but to award the compensation that is reasonable in light of the evidence they hear.
California places no cap or limit on a wrongful death award.
Compensation can generally be divided into two categories: economic damages and noneconomic damages.
Each person making a wrongful death claim who was dependent upon the deceased for financial support is entitled to recover the present value of the support that person will lose because of their loved one’s demise.
“Present value” is the sum of money that would need to be invested today to produce the same amount of financial support the deceased would have provided if the deceased had lived a normal lifespan.
A spouse is generally entitled to an award of the financial support that he or she would have received from the deceased spouse until the end of the deceased’s normal life expectancy (or the end of the surviving spouse’s normal life expectancy, if it is shorter). A minor child is generally entitled to an award of lost support until the child reaches adulthood.
If a child can prove that support would have continued into adulthood (while pursuing a higher education, for example), the child may be entitled to recover the present value of lost support for the length of time the support would have been provided.
Economic damages also include the value of gifts or benefits the person making the claim would have received from the deceased during the course of the deceased’s normal life expectancy.
Finally, economic damages include the value of household services the deceased provided. If the deceased cooked daily meals for the surviving spouse and cleaned the house, for example, the value of comparable cooking and cleaning services can be recovered as economic damages.
As noted above, the deceased’s estate can bring or join a claim to recover funeral and burial expenses and other financial losses that the estate experienced as a result of their loved one’s death.
States use different phrases to describe the noneconomic damages that can be recovered, but the underlying concepts tend to be similar. Noneconomic damages for wrongful death in California compensate people for three categories of losses:
- The loss of the departed’s love, companionship, comfort, care, assistance, protection, affection, society, and moral support.
- In situations involving a spouse or domestic partner, the loss of the enjoyment of sexual relations with the deceased.
- Primarily in the case of a child, the loss of the training and guidance that the deceased would have provided.
It is difficult to place a dollar value on the loss of love and companionship. The only guidance provided to juries in California is that the compensation should be “just.” It is up to the jury to decide what is just. Lawyers evaluate cases for settlement by keeping track of the amount local juries have awarded in similar cases.
California’s standard jury instruction for wrongful death advises juries not to award damages for any grief, sorrow, or mental anguish that the person bringing the claim experienced as a result of their loss. Some other states permit the recovery of those damages.
In California and as a general rule elsewhere, the person making a claim cannot recover damages for the deceased’s pain and suffering prior to their demise. That is because a wrongful death claim compensates family members for their own losses due to the deceased’s passing, not for the deceased’s losses prior to death.
Can punitive damages be recovered?
Punitive damages are intended to punish the wrongdoer rather than to compensate for a loss. Most states, including California, prohibit an award of punitive damages for wrongful death.
California makes an exception to that rule when a lawsuit is commenced against a defendant who was convicted of felony murder.
As a practical matter, a jury’s award of punitive damages will often be symbolic since most individuals convicted of felony murder lack the resources to pay a large judgment.
The deceased’s estate, however, may be entitled to recover punitive damages by bringing a survivorship claim if the deceased would have been entitled to recover punitive damages if the deceased had not died.
For instance, punitive damages can generally be recovered for injuries caused by an extremely intoxicated driver. An estate bringing a survivorship claim against the drunk driver may be allowed to pursue a claim for punitive damages.
They are only available, however, if the deceased survived for a least a brief period of time after the accident occurred that caused his or her demise.
In addition, a different rule may apply in California if a loss resulted from elder or dependent care abuse. Consult a lawyer or take advantage of free legal resources to learn about additional damages that might be awarded if fatal injuries were caused by neglect or abuse in a nursing home or other dependent care facility.
How are damages divided?
The judge in some states will direct the jury to make a separate award of damages for each person seeking compensation. In some states, the jury will also make a separate determination of economic and noneconomic damages.
As a general rule in California, the jury will make an undivided lump sum award of damages regardless of the number of persons who are making a claim for compensation. If the family members cannot agree upon how that award should be divided, the court will divide the damages in whatever way it deems most fair.
With the agreement of all persons seeking compensation and the consent of the judge, however, a California jury can be asked to make individual awards to each person seeking compensation.
Compensation cannot bring my loved one back. Why should I seek it?
No amount of compensation can restore a lost life. No award of damages can replace the love you received from a family member who died. But monetary compensation — an award of money — is the method by which our civil justice system dispenses justice. If you are entitled to compensation, there are several reasons why you should seek it.
Replacing financial support
You will find it difficult to go on without the support of your lost husband or relative, but your burden should not be made heavier by losing the financial support that person provided. If you depended on that person’s income to help pay for housing, food, tuition, transportation, clothing, or other expenses, you should not be deprived of those necessities due to another person’s wrongful or careless conduct. The person who contributed to your support wanted you to have those things. Replacing that income by bringing a claim assures that you will have what your loved one wanted you to have.
Deterring future misconduct
While deterrence is not officially recognized as a goal of wrongful death lawsuits, every claim sends a message. People who know they will be held financially responsible for their carelessness are less likely to be careless. Insurance companies that pay judgments or settlements are more likely to support programs that promote safe driving and are more likely to lobby for increased safety standards and for stricter enforcement of laws designed to prevent fatal accidents.
When health care providers are sued for malpractice, they are more likely to insist on stronger standards of peer review to weed out incompetent doctors and staff members.
These claims help the family members of deceased victims, but they also help society.
Promoting product safety
Wrongful death claims that are based on unsafe products encourage product manufacturers to subject their products to more extensive testing and review before they are marketed.
Fear of incurring financial liability motivates manufacturers to add safety features and warning labels to products.
Manufacturers were more likely to cut corners before courts began to allow product liability claims based on preventable fatalities.
If the person responsible for your loved one’s death was not prosecuted for a crime, or if the punishment consisted of probation or a light sentence, you may spend the rest of your life thinking that the person responsible for your loss was able to escape justice.
By pursuing legal action, you cannot punish that person, but you can assure that the person is held financially responsible for his or her conduct. The sense of justice you can receive from a verdict or settlement may give you a sense of closure that you would not otherwise experience.
How long do I have to make a claim for compensation?
In some states, the applicable time period depends on how the fatality occurred.
In California, a lawsuit for wrongful death must be filed within 2 years after the date of death.
If suit is not filed before the statute of limitations expires, you will lose your right so seek compensation.
California’s statute of limitations for filing a survivorship lawsuit based on negligence is also 2 years, but that time period is measured from the date of the negligent act rather than the date the victim died.
If the fatality was caused in a traffic accident and the deceased was hospitalized for two weeks before dying, the statute of limitations for a survivorship claim begins to run two weeks before the statute of limitations for a wrongful death claim.
Different limitations periods probably apply, and additional procedural requirements are usually imposed, if the claim is based on medical malpractice or if the claim seeks to hold a government employee responsible for the fatality.
In either of those cases, you should seek legal advice immediately to make sure you do not lose your right to bring a lawsuit.
How long will it take me to receive compensation?
Every case is different.
Some cases can be settled with an insurance company before filing a lawsuit.
Other cases settle shortly before trial when an insurance company knows it cannot delay the inevitable any longer. Most cases settle but some go to trial.
Wrongful death cases in other states follow a different set of rules that can affect several aspects of the process.
The time it takes for a case to go to trial depends on the complexity of the case and the availability of time on the court calendar.
Some courts are more congested than others and some cases take longer to prepare for trial.
When the facts are in dispute, it may take longer for your lawyer and for the insurance company’s lawyer to determine how a jury would likely resolve that dispute.
Sometimes an investigation takes substantial time, particularly when you need to obtain opinions from expert witnesses, including accident reconstruction analysts or economists who calculate lost income.
Complex cases involving products liability or toxic substances generally take longer than cases based on automobile accidents. Medical malpractice cases require you to comply with special procedures that can delay a resolution of your claim.
As a general rule, when liability is clear and when the amount of compensation you seek is reasonable, the case is likely to settle quickly.
If an insurance company thinks you are desperate for money, however, it may delay settlement to induce you to accept less than you are entitled to receive.
If your settlement expectations are unrealistic, your claim will not be quickly resolved.
A lawyer who handles the kind of wrongful death claim you want to bring and who is familiar with the court calendars in your area will be in the best position to evaluate your case for settlement and to estimate the amount of the time it will take for you to receive compensation.
Those in need of a wrongful death law firm in California are encouraged to contact our law offices for a free case evaluation. Call (800) 838-6644 to speak with a legal professional that has years of experience assisting those in your position. Call now to get help today.