Wrongful Death Laws

coffinHere at Christensen & Hymas, we know that some of you have lost loved ones because of the poor actions of others. We offer our condolences and our best wishes. But we also want to offer you help. This page goes over the wrongful death laws and other legal aspects of these cases. We want to make sure that you not only understand your rights, but also what will be expected of you as you pursue your case. While we cannot help with specifics regarding your case unless we have agreed to take it, we want to give you free information to help you avoid making any big mistakes in an already difficult time.

What is considered a “Wrongful Death?”

Utah law specifies a death caused by the “wrongful act or neglect of another” can be pursued in court by the deceased’s heirs (or a representative of the heirs) against the party responsible for the death of their family member (Utah Code). Someone may pursue a wrongful death claim because of:

  1. medical malpractice (Utah Code)
  2. provided or administered an illegal drug (Utah Code)
  3. auto accidents
  4. work-related accidents
  5. faulty products
  6. illegal exposure to dangerous materials

Who can pursue a wrongful death claim?

The lawsuit can only be pursued by legal heirs and is done on behalf of all of the heirs, meaning that only one claim can be filed (Utah Code). Utah defines heirs as all immediate, surviving family members; this includes the deceased’s:

  1. Spouse;
  2. Natural or adopted children;
  3. Natural or adoptive parents; and
  4. Stepchildren who are under 18 years old and financially dependent upon the deceased person (Utah Code).

If none of the above people exist, then heirs includes any blood relatives (Utah Code). The person automatically in charge of the suit is the “presumptive personal representative,” which falls upon a:

  1. Spouse;
  2. Adult Child; or
  3. Parent (Utah Code).

The  “presumptive personal representative” starts with the spouse but can move down that list as each person is disqualified by being nonexistent, dead, incapacitated, or allegedly responsible for the death of the deceased individual (Utah Code). The family can also choose their own personal representative to act in their place. A guardian of the deceased person may pursue a claim, but only for the benefit of the heirs, not for his or her personal benefit (Moreno v. Board of education). Also, parents may pursue a claim on behalf of their unborn child (Carranza v. United States)

What can I hope to recover?

While no amount of money can bring back your loved one or ease the pain, you are entitled to recover some damages including:

  1. medical and funeral expenses
  2. loss of anticipated earnings
  3. pain and suffering of the surviving family members
  4. loss of companionship
  5. loss of medical benefits
  6. loss of pension benefits
  7. punitive damages

According to the Utah Constitution, there is no limitation for the amount of money that can be recovered, unless specified by Utah law (Article 15, Section 5).

What time limits should I know about?

The heirs must file the wrongful death claim within two years of the death (Utah Code), or one year if they file against the government (Utah Code). Each case is different, but all have a limitation on how long the family has to file a claim against the wrongdoer (Jensen v. IHC Hospitals).

The representative must wait 45 days until they can present a claim by affidavit to the insurance company for “up to $25,000 for liability and uninsured motorist (UM) claims and $10,000 for underinsured motorist (UIM) claims” (Utah Code). However, claims for personal injury protection (PIP) benefits do not have to wait for 45 days to elapse (Utah Code). Pursuing a wrongful death case will not affect any other case one of the heirs might have on their own behalf against the wrongdoer (Utah Code).

If either the person injured or the person responsible for the injury dies before the settlement of any claims, the case does not die but continues with representatives of the deceased person (Utah Code). They can also pursue damages for personal injury to the deceased before the death (Utah Code). The heirs can then pursue damages either directly or indirectly from the accident up to $100,000 against the wrongdoer for the injuries sustained before death (Utah Code).

However, if the injured person dies six months after the accident, then the heirs can only seek payment for damages indirectly and uniquely caused by the accident, not directly, unless they have given written notice before the six months elapses (Utah Code). Further, if before the injured person died, he or she had settled or lost a claim or failed to file it before the statute of limitations passed, then the heirs cannot file a wrongful death claim, unless certain exceptions apply (see Jensen v. IHC Hospitals & Bybee v. Abdulla).

What specifics should I know about how a wrongful death case is handled?

There must be more evidence than the testimony of the injured person prior to his or her death (Utah Code). The heirs must prove that over half of the evidence is against the wrongdoer. Typically, there are four things that the heirs must prove:

  1. the death of their loved one;
  2. a ‘wrongful act, neglect or default of the defendant’ that caused the deceased’s death;
  3. the survival of heirs who suffered loss from the deceased’s death; and
  4. the appointment of a personal representative for the deceased (Cornell University Law School).

Damages awarded to the heirs are based on several factors about the deceased:

  1. age
  2. health
  3. expectation of life
  4. employment
  5. business capacity
  6. habits
  7. experience
  8. ability and disposition to earn money (Moore v. Utah Idaho Center).

If a father was killed, the court may also consider the number and ages of his children, as well as his treatment of them, and the physical condition of his wife (Chilton v. Union Pacific & Evans v. Oregon Short Line). The court will not consider emotional grief or sorrow (Moore v. Utah Idaho Center & Corbett v. Oregon Short Line).

How is the settlement distributed?

Upon settlement of the wrongful death claim, money will be distributed proportionately to each heir based upon the loss of the following factors:

  1. financial support;
  2. “affection, counsel and advice;”
  3. “care and solicitude for the welfare of the family;” and
  4. “comfort and pleasure the family… would have received” (Oxendine v. Overturf, et al.).

These are all based upon the heir’s standing at the time of the deceased’s death, so it does not consider changes that occur after the death including remarriage (Shields v. Utah Light & Traction). The money will go directly to the heirs and only pass through the hands of the personal representative (re Behms Estate v. Gee). The estate is not allowed to participate in this process and the personal representative cannot distribute the money like the rest of the estate (re Behms Estate v. Gee).

If a person that qualifies to be an heir is not included in the distribution of the settlement, the lawyer representing the heirs can be held liable unless there was a conflict between this heir and the personal representative (Oxendine v. Overturf, et al.). If this occurs, this heir may obtain legal counsel and pursue a separate claim against the wrongdoer (Oxendine v. Overturf, et al.). This is the only exception to the rule that all heirs must pursue their claims in one case. Also, if any of the heirs are under 18, then no more than 50% of any benefits can be distributed until a court appoints a legal representative to handle the child or children’s benefits (Utah Code).

How can I deal with all of these financial and legal problems?

As you can see, seeking recovery for the loss of your loved one can become complicated and lengthy. We at Christensen & Hymas want to help make it easier for you. To see how we have helped other people who have lost loved one and how we can help you check out our Wrongful Death Lawyer page or see examples of cases we have won.

Image “Roy’s Funeral” copyright by Don LaVange.

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