The thought of a lawsuit is one of the scariest processes a person can imagine going through. Add the emotions of having lost someone dear, and the process becomes overwhelming. Learning how to file a wrongful death claim and understanding the process before you file will help ease the anxieties of having to face this ordeal.
A wrongful death case is one of the more complex types of cases in the field of personal injury law. These cases require knowledge of understanding your state’s complex laws and how courts interpret those laws. Each case is different and will be influenced by different nuanced facts and circumstances.
What Is A Wrongful Death Case?
Utah Law (Code section 78B-3-106) defines “wrongful death” as the taking of the life of an individual by the “wrongful act, neglect, or default” (intentional or unintentional) of another party (person, persons, or entity). A wrongful death claim is the legal action brought by a close family member or personal representative of the estate of the deceased or the victim of the negligent action against the person or the entity that caused the death.
Almost all wrongful death claims are based upon another’s negligent actions. Cornell’s Wex online legal dictionary defines “negligence” as:
“A failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances. The behavior usually consists of actions, but can also consist of omissions when there is some duty to act (e.g., a duty to help victims of one’s previous conduct).”
A negligence claim requires:
- A duty
- A breach of that duty
- Consequent injury and/or death
Negligence can be obvious (in cases involving alcohol, many automobile accidents, etc.) or not so obvious (such as in medical malpractice cases).
Wrongful death situations are different and separate from filing for criminal charges against the person who caused the death. In many cases both can be filed and the person can be taken to a criminal court and a civil court. If the person is acquitted in the criminal court, he or she can still be sued for wrongful death in a civil court.
Civil Claims vs. Criminal Charges
When a death occurs there are two types of legal consequences: civil action or criminal prosecution. Wrongful death claims fall under the category of “civil action.” Therefore, there is only one remedy—collection of monetary damages from the at-fault party. When a criminal case is filed, the remedy is not money, it is about just punishment for the offender, which includes prison time and fees. Another difference between the two is that the wrongful death claim must be filed directly by the personal representative while a criminal homicide charge must be filed by a prosecuting attorney.
Wrongful deaths can occur because of:
- Medical mistakes
- Car accidents
- Airplane accidents
- Criminal attacks
- Animal attacks
- Work related injuries
- Exposure to dangerous chemicals
- Failure to supervise
A wrongful death can be caused by an individual, a corporation, or a governmental entity. The wrongful act could be a procedure or a policy that causes a death, or an action by an employee who represents a corporation. Not all deaths result in a wrongful death action. Sometimes there is no one that is negligent. Other times the death is caused by the decedent’s own actions.
Who Can File a Claim?
This depends on the state in which the person lives and where the claim is filed and can be answered in the state’s wrongful death statute. These statutes define who can sue for wrongful death and if there are any limits that are to be applied when damages are awarded.
Nolo provides a summary of Utah’s law concerning who is eligible to file a claim:
In Utah, a wrongful death claim must be filed by either the heirs of the deceased person or the personal representative of the deceased person’s estate. If the deceased person was an adult under guardianship, the legal guardian may bring the wrongful death claim to court.
According to Utah Code section 78B-3-105, the “heirs” who may file a wrongful death claim include:
- the surviving spouse
- the surviving adult children
- the surviving parent or parents, including adoptive parents
- the surviving stepchildren, if they are under 18 at the time of death and were financially dependent on the deceased person, and
- other blood relatives as listed in Utah’s inheritance laws.
The person who files the wrongful death case must first be appointed or authorized by the court. This person is known generally as a “personal representative.” Personal representatives act on behalf of the deceased person’s estate and are given authority by the court to file a suit in order to collect the recovering damages from the deceased’s wrongful death. This person has a responsibility to protect the interests of the estate and all of the beneficiaries who may have a legal right to recover damages in the case.
Utah law presumes that one of the heirs will take on the job of personal representative. However, if the deceased person has an estate plan, it may name a personal representative. The named personal representative may also file a wrongful death claim.
Where Can the Claim Be Filed?
A wrongful death claim should be filed in a State Circuit Court in the county where the action that cause the death occurred. It can also be filed in the county where the person that caused the death lived or in a Federal District Court if there is diversity of citizenship involved.
. . . And When?
There are rules governing how much time you have to file a wrongful death case in your state. This time limit is called the statute of limitations. As a rule, you should never wait until the last minute to do anything. But you should especially avoid procrastinating the filing of a lawsuit. It is important to maximize the time to investigate the facts and to prepare the case. If you wait, you run the risk that evidence could be destroyed or that witness statements can become inaccurate.
In Utah, the statute of limitations require that wrongful death claims be filed within:
- Two years of the date of the deceased’s death in a personal claim
- One year if the claim is against the government.
A wrongful death claim may be filed even if a criminal case has already been filed or will be filed in connection with the death. Because a criminal case may affect how the statute of limitations applies in a wrongful death claim, however, it is wise to speak to an attorney with experience handling Utah wrongful death claims.
What Is My Case Worth?
This question is difficult to both ask and answer, because there is no real amount of money that can compensate for your loss or that can replace the worth of your loved one. This is one reason for hiring an attorney—someone with experience in this field can help you determine whether it is worth it to file a claim. Before you file, you must evaluate how much you can expect to recover. How much will the case cost you in terms of time, money, and emotion? What are your chances of success? Here are some basic factors that we use to help you determine the value of a wrongful death claim:
- The compensation allowed by Utah law
- Your likeability, which includes the type of witness that you will make and how you will relate to the jury
- The type of life the deceased person led and their reputation in the community
- The amount of insurance the at-fault party has and the value of their assets
- The type of witness the at-fault party will make and what he or she was doing at the time of the accident
- The factors surrounding the death (i.e. was the at-fault driver drinking?)
- The county where the case is located
- The reputation of the judge and the reputation of a typical jury in your specific county
Wrongful Death Compensation
According to Utah law, damages that may be recovered in a successful wrongful death case include:
- funeral and burial expenses
- medical expenses related to the deceased person’s final injury or illness
- lost wages, including the value of future wages and benefits lost as a result of the untimely death
- pain and suffering endured by surviving family members as a result of the death
- loss of care, companionship, guidance, and
- punitive damages
Why Hire An Attorney?
As you know, laws and procedures involved in wrongful death claims are complex. It is extremely important for you to consult with an attorney who has specific and adequate experience with litigating wrongful death cases. Attorneys can be important assets that will help you with:
- Obtaining evidence (i.e. written statements, specific measurements, witness accounts, etc.)
- Understanding the state statutes (including the statute of limitations or how much time you have to file the claim)
- Completing forms necessary to file the claim (including filing documents like the summons, complaint, etc.)
- Understanding your role as a “Personal Representative”
- Calculating expenses
Photo copyright to Don LaVange