What you should know about pursuing a wrongful death case.
The decision to pursue a wrongful death case is often a difficult and stressful one. It occurs at a time when you’ve lost a loved one and are struggling with grief. You may be trying to put your life back together and move on, or you may just be trying to get through one day at a time. Everyone deals with grief a little differently, but it’s not uncommon to feel that you need to address why your loved one died. It’s also not unusual to wonder if their death could have been prevented and if someone else should be held responsible.
This is when people sometimes come to us with questions about pursuing a wrongful death case. It is true that if another party’s negligence contributed to an accident or situation that caused a person’s death, their survivors may have a potential wrongful death claim. However, proving in court that the third party contributed to the deceased’s death is often a difficult and time-consuming process. In some situations, there simply isn’t enough evidence to prove the case. If you’re unsure if you have a valid claim, we recommend seeking a free consultation from a wrongful death attorney. They can go through the details of the case with you, and let you know your options.
We hear this question a lot. It’s often followed by, “Winning a lawsuit won’t bring my loved one back.” This is true. It’s also true that the only thing you can recover in a lawsuit is money, which can never replace your loved one. However, there are two important reasons why people sometimes decide to pursue a wrongful death claim anyway:
Losing a loved one can mean losing their financial support.
Unfortunately for many families, one person’s death can devastate the family’s financial situation. If your spouse was the main earner, the sudden loss of income can leave you struggling to pay your bills. On top of that, you may also have a stack of medical bills accrued prior to their death. Even if your spouse had a life insurance policy, it may pay as little as $10,000. Insurance companies often recommend that minimum life insurance coverage should be six to ten times your annual salary. This is good advice, but not everyone can afford the premiums on that type of coverage, and less expensive policies may barely cover the funeral expenses.
Dealing with grieving your loss is difficult enough. You shouldn’t also have to struggle to pay the rent, put food on the table, or buy school supplies and other items your children need. While receiving damages in a wrongful death case can’t bring back a loved one, it can allow you to pay your bills and care for your dependents.
You may want the responsible party to be held accountable.
Some of our clients simply want to know that the person or entity responsible faced some consequence for their actions. In some cases, they may have sought relief from the criminal justice system previously. It’s important to understand that the criminal court carries a relatively high burden of proof – a person must be found guilty beyond a reasonable doubt. In a civil case, the burden of proof is lower, only requiring the jury to find the defendant guilty by a “preponderance of evidence.” In most cases, you don’t need to prove that an act was premeditated or even intentional, just that it was negligent and caused the victim’s death.
It is possible to bring a civil case over what you believe to be an intentional act that the criminal courts haven’t been able to address. One famous example of this is the O. J. Simpson case – Simpson was acquitted of two homicide charges in 1995, yet the families of the two victims successfully sued him in civil court. However, these cases are more difficult to try, and in many cases, your lawyer may recommend suing on the ground of negligence instead, as your chances of winning the case may be higher. For this reason, most wrongful death claims focus on negligence.
Who Can File a Wrongful Death Lawsuit?
Under South Carolina law, a wrongful death case can only be brought by the executor or administrator of the deceased person’s estate. However, if the estate receives damages from the lawsuit’s resolution, they will go to the family of the victim – first, the spouse and children. If the deceased wasn’t married and didn’t have children, their parents may receive the money. If their parents are also deceased, any other heirs may benefit – other relatives, if the decedent didn’t have a will, or any heirs named in the will if they did. In the event that the deceased had a spouse but no children they knew of, the spouse will receive 100 percent of the benefits. If the deceased had a spouse and kids, the spouse will get half the award and the children will equally split the other half. If there are surviving children but no spouse, the children will divide the award equally.
So what should you do if you want to file a wrongful death suit? First, it’s a good idea to speak with the estate’s executor or personal representative – they should be named in the will if the deceased had one. If your loved one passed without a will, the probate court will name an executor to administer the estate per the decedent’s wishes. This person may be the decedent’s spouse, child, parents, sibling, aunt or uncle, niece or nephew, parent-in-law, son- or daughter-in-law, grandparent, or grandchild. You can ask the judge to appoint you executor if you want the job.
If you are not the executor, you can ask them to speak with an attorney about the possibility of filing a wrongful death suit. Fortunately, you have three years from the date of the decedent’s death to file a wrongful death lawsuit under South Carolina law, and the probate court should name an executor well before that time period is up.
What Kind Of Damages Can You Seek In A Wrongful Death Case?
If you or the executor of the estate win the wrongful death case, the defendant (or their insurance carrier) will have to pay the damages awarded by the jury or judge. There are several kinds of damages your attorney may ask for:
- Expenses for the decedent’s funeral or burial
- Any medical expenses resulting from the injury or illness that ended their life
- The financial support and other benefits the deceased previously provided (your attorney will calculate this value based on factors like how much the person earned, their lifetime earning potential, etc.)
- Loss of more personal benefits, like the decedent’s knowledge, experience, or judgment, or their companionship and care
- Pain and suffering that you or other family members have experienced from losing a loved one
In rare cases, the court might also award exemplary or “punitive” extra damages. These are not intended to compensate the victim’s family for their loss, but to punish the person or entity responsible for particularly reckless or dangerous actions and to discourage others from taking similar actions in the future.
Common Situations That Can Result In Wrongful Death Claims
There are a wide variety of circumstances in which negligence can lead to a person’s death. It’s not possible to list all of them, but here are some common reasons for wrongful death claims:
- Traffic accidents, including pedestrian and bicycle crashes (traffic deaths are probably the most common type of wrongful death claim)
- Medical malpractice
- Accidents in the workplace that lead to a worker’s death
- Nursing home neglect
- Premises liability (an accident, or sometimes a crime, occurring on someone else’s property that leads to death)
- Plane, train, or other transportation accidents
- Accidental drownings
- Deaths caused by defective products
If you’re unsure if the circumstances of your loved one’s death might be a wrongful death, it’s a good idea to speak with an attorney to understand your options.
What Do You Need To Prove In A Wrongful Death Claim?
There are four important things you need to prove when making a wrongful death claim:
- A death has occurred. This part is usually fairly straightforward.
- The death was caused by the negligence of another person or entity (this can be a business or other organization).
- The deceased has living immediate family members, like a spouse, children, parents, or siblings.
- These family members have suffered an economic loss due to the decedent’s death.
Your attorney will talk to you about the kinds of evidence they might introduce if your case goes to trial. (Many wrongful death claims settle out of court.) This may include accident reports, medical records, witness testimony, video or audio evidence, and other types of evidence based on your case.
If you have lost a loved one to another’s negligence, please contact Auger and Auger Accident and Injury Lawyers right away for a free consultation. We’ll look over your case and explain your options for seeking compensation. There’s no obligation. If you do choose to let us represent you, we have a zero fee guarantee – if we don’t win your case, we won’t charge you any fees. Call (851) 971-1114 or contact us online today.