Who can file a wrongful death lawsuit in Utah?

Pillar on courthouse steps in UtahWhen you are dealing with the aftermath of personal tragedy, wading through the legalese to figure out who can file a wrongful death lawsuit in Utah can be a daunting task. There are legal terms you’ll want to familiarize yourself with before you move forward.

A “presumptive personal representative” is, first, the spouse of the deceased, assuming that the spouse is not alleged to have contributed to the death. Next in line to be a personal representative are the adult children, with the same conditions applying. If no spouse or adult children exist or are eligible, next in line is the parent of the deceased.

One cannot file a wrongful death suit immediately, but must wait forty-five days after the death of the family member. A suit can be filed if the death was “caused by the wrongful act or neglect of another,” according to the Utah State Code.

The monetary level of claims varies depending on insurance status – $25,000 for uninsured motorist claims,  and $10,000 for under insured motorist claim. The claim is presented directly to the insurer. An authorized affidavit must be presented to verify that you are, indeed, the personal representative, that no other claims have been filed, and that a notice of intent to file has been sent to all known heirs of the deceased.

If you file for personal injury protection benefits resulting from the death of an insured family member, you are exempt from the 45-day waiting period, otherwise, the other steps apply.

Filing a wrongful death suit does not exempt you from legal duties to provide for the deceased’s heirs. The personal representative’s claim will be on behalf of all heirs.

The presumptive personal representative will be dealt with by the insurance company in the same manner as a personal representative upon presentation of the required notarized affidavit. The insurance company is not required to investigate the truth of the claim.

Nothing about a wrongful death suit prevents the insurance company from paying out standard first party benefits. A tort feasor (the individual who commits a wrongful act that injures another) can still be liable. Lastly, the presumptive personal representative cannot distribute more than 50% of any settlement to any minor heirs before court approval.

A dead person cannot sue under common law, so the wrongful death suit is a loophole whereby the close relatives of the deceased can seek damages against the party which caused the death.

The standard evidence is a preponderance of evidence; therefore, it is often easier and more likely to succeed to pursue a civil wrongful death case rather than a criminal case, though the two are not mutually exclusive. Wrongful death claims are also the only way to sue a company held to be liable for a loved one’s death, as corporations cannot be tried under criminal law. Tobacco companies have been sued (both successfully and unsuccessfully) in wrongful death claims.

Emotions run high in the case of a loved one’s death. Call Christensen & Hymas (801) 546 – 0800 to get the best advice on how to proceed with a wrongful death lawsuit. As the Utah laws make clear, time is of the essence. The closer you were related to the deceased, the greater the chance of successfully moving forward to get what is owed.

Ken Christensen
Partner, Founder at Christensen & Hymas
Ken Christensen is the founding partner of Christensen & Hymas. He is an avid cyclist, loves baseball, and enjoys spending time with his family in the outdoors.

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