This question is complicated and involves many factors, but the short answer is maybe. Let’s take a closer look at wrongful death cases and the considerations that go into deciding if you want to pursue one.
We’ll also look at the circumstances where you might have to go to court if you are in any way involved in a wrongful death case.
First, we’re sorry for the loss you’ve experienced that’s led you to consider a wrongful death suit. Losing a loved one is never easy, and wondering if their death could have been prevented can make it even more painful. Often we meet people who are deeply concerned that another party’s negligence caused the death in question. They may worry about others being hurt in the future. They might want the responsible party to experience some form of justice. Additionally, on top of dealing with their grief, they may have been left with financial difficulties following the death of a spouse or family provider.
These are some common reasons why people consult with a North Carolina wrongful death attorney. We usually ask about the deceased, how their death occurred, and other questions to determine which party (or parties, in some cases) may have been negligent. We also ask about the decedent’s estate situation, because this affects who can file a wrongful death case in the state.
Sometimes clients are surprised to learn that they can’t file a wrongful death suit themselves in the state of North Carolina. This is likely because many states allow a surviving spouse or other relatives to file such a suit. However, in North Carolina, only the personal representative of the decedent’s estate is able to file a wrongful death suit. A personal representative is similar to an estate executor and is either chosen when a person creates a will, or by the court handling the decedent’s estate if they died intestate (without a will). It’s common for a surviving spouse, adult child, parent, sibling, or other relative to be appointed personal representative.
If you are not the personal representative of the deceased’s estate, however, that doesn’t mean you aren’t entitled to receive damages if the case is successful. Some people mistakenly think that any compensation awarded in a wrongful death suit becomes part of the estate and is distributed as such, but this is not true. Under North Carolina law, any financial award from a wrongful death suit is given to the decedent’s heirs in accordance with intestate inheritance laws. A surviving spouse and/or children will usually be the first to inherit, followed by other relatives. (Some of the award may also go to pay any outstanding medical bills for the decedent or to reimburse the estate for costs of pursuing the lawsuit.)
If you believe a wrongful death suit should be filed and are not the estate’s personal representative, you may want to talk to that person and advise them to speak with a wrongful death attorney. In the event that they are uninterested in pursuing a claim but you still think there is a strong case, you should consult with a lawyer yourself. In some situations, you may be able to convince a judge to replace a personal representative if they are failing in their fiduciary duty to the estate.
If the decedent did not have a will, an estate proceeding will need to be opened for them, even if they had few or no assets and you did not think it would be necessary. A wrongful death suit cannot be filed without an estate and personal representative. In this situation, you may be able to get yourself appointed personal representative.
First, many wrongful death cases do not proceed to trial. In many cases, the negligent party or their insurance company will agree to a settlement at some point in the litigation process. Your attorney will file papers for the lawsuit, and may later go to court to argue for various motions relating to evidence or other issues for a trial. During this time, they may also negotiate with the other party. If both sides can come to an agreement that allows you and the other potential beneficiaries to receive a fair settlement, you will have the option to settle without going to court for an actual trial.
This is actually the most common way for wrongful death and other personal injury claims to end. It is surprising to some people because movies about wrongful death claims tend to involve lengthy courtroom scenes. But in the real world, the negligent party is often represented by an insurance company, and that company has a legal team. If they recognize that there is substantial evidence in your favor, there’s a good chance they will be willing to negotiate a settlement. Whenever the other party makes an offer, the wrongful death attorney will go over it with the personal representative and answer any questions they have.
Negotiations don’t always end with a settlement. Sometimes, the other party simply isn’t willing to agree on a fair amount of compensation. If this is the case, you may reject the claim and proceed to trial.
If you are the personal representative of the state, you probably should go to court so you can keep up with what’s happening and confer with your attorney as needed. However, you probably won’t have to do anything on most of the days you’re in court. Your attorney will make arguments on the following points:
If you were the spouse or a close relative of the deceased, your attorney may suggest you testify to tell the court more about the decedent and how they contributed to the lives of their family and friends. Naturally, this can be an emotionally difficult and draining experience, and you don’t have to do it if you don’t think you can. However, it can sometimes be helpful for the jury to learn more about the deceased person’s life and what was lost.
In other situations, if you were there when the accident that took your loved one’s life occurred and there were no other witnesses, it may be important for you to testify about what happened. Again, this can be a stressful experience and you don’t have to do it. But if there isn’t a large amount of evidence besides your testimony, then your testimony may greatly improve the chances of winning the case.
One example of this sort of situation would be if you were in a car accident with your spouse and they died as a result. Sometimes we’re able to find ample evidence in car accident cases, such as traffic cam video or multiple witnesses who saw the crash happen. But in other situations, there may not be any video footage of the accident, and there might not have been witnesses besides the other driver.
In many cases, this other driver will claim the accident wasn’t their fault for one reason or another. Or, they may admit to having made some mistake in the accident, but claim they weren’t solely responsible because the other driver (you or your spouse in this scenario) also did something wrong. This is because North Carolina uses contributory negligence statutes in personal injury cases, including wrongful death suits.
What is contributory negligence? It is a legal concept in which a plaintiff (the person suing the allegedly negligent party) cannot collect any damages if they were even 1 percent at fault for the accident. (In a personal injury case, the plaintiff is the injured party. For the purposes of a wrongful death suit, the plaintiff is the deceased party, although the suit is brought by the estate’s personal representative.) So, if your spouse was driving the car, the other driver might admit that they were going a little fast, but also claim that your spouse ran a stop sign, or didn’t have the right of way. In fact, it may have been the other driver who ran the stop sign, but in a rural area without traffic cameras, this will be hard to prove without the testimony of a witness.
They may not know immediately because they won’t know if it is necessary to go to trial until they begin negotiating with the other party’s lawyers. Your wrongful death attorney will probably be able to tell you if your testimony would be important in a trial, but they won’t know for sure if a trial will occur before beginning the lawsuit proceedings. They will keep you up to date on how things are going with your case, and on any settlement offers made by the other party. If it looks like negotiations have stalled and a trial is likely, they will let you know if your testimony will be crucial to the case.
No lawyer can answer that question for you. What they can do is answer other questions you have and explain what they believe the case is worth, and why. They might also advise you if they think you have a strong case and are likely to win at trial. Again, they cannot guarantee anything because unexpected things may happen in trials.
Before filing your lawsuit, your lawyer will go over the potential damages you might seek, and calculate a reasonable amount to ask for each:
Based on all of the above, your attorney will come up with what they believe is a fair amount of compensation for the decedent’s beneficiaries. In some cases, the personal representative may decide to accept an offer lower than this amount in order to avoid a lengthy and potentially expensive trial. If you are a personal representative, it’s a good idea to talk this decision over not only with your attorney, but to keep in mind what other beneficiaries might want you to do. You’ll want to consider whether there will be enough money to not only pay off existing bills but also care for a surviving spouse and any minor children of the deceased.
If you have suffered the loss of a loved one because of another party’s actions or negligence, you may be overwhelmed with sadness, stress, and possibly financial struggles. At Auger & Auger, we hope to take as much of that load as possible off your shoulders so you can concentrate on your family at this time.
Following your free consultation, we will do what we can to keep you involved in the legal proceedings as much or as little as you’d like. We can handle the paperwork, talk to experts and witnesses, and negotiate with the insurance companies on your behalf. We have been helping wrongful death victims get the compensation they deserve for over 26 years, and we know what it takes to win your case.
You won’t owe us a dime unless we win your case. Call us at (855) 969-5671 or contact us online for a free, no-obligation consultation with an experienced wrongful death lawyer. Our legal team is always available to take your call.