It amazes me the extent to which every state has very different law on survival action and wrongful death cases. I remember the first time I had a case in West Virginia back when I was defending pharmaceutical companies. The basis for damages in a survival action and a wrongful death claim were pretty much the exact opposite of how it works in Maryland. Today, we turn to Mike Ehline, a California lawyer who handles a lot of these claims, to give some thoughts on the nuances of wrongful death in his jurisdiction. It is Mike’s ball from here.

When a person is fatally injured due to the careless, reckless, negligent or intentional actions of another person, entity, employer or manufacturer, this is called, in California as in most other states, a wrongful death. This is a statutory claim alleging that a fatality occured due to a wrongful act or negligence, it is important to consult an law firm that focuses on this area of the law and has the resources to prepare a wrongful death claim.

Time can be crucial in any legal action, to preserve evidence and interview witnesses, which are important factors in a negligent fatal accident. Investigating and preserving evidence will involve investigators, accident reconstruction experts and medical experts, who are able to evaluate the evidence collected, as well as the cause of the death. So if you think you might have a claim, you should retain counsel as soon as practicable.

Statutes in Wrongful Death Claims

Statutes in this type of claim originally did not exist in laws, until state legislators determine that the current law that a legal claim died with the victim, was not fair to the family. This law failed to compensate the family members and spouse, who suffered economic losses and non-economic loss as a result of the death. Lawmakers enacted the wrongful death laws to compensate families that suffered the loss by death of a loved one, due to the actions of another person or entity.

Statistics for Wrongful Death

According to the National Safety Council accidental fatalities are the leading cause of death in the United States. They estimate the rate of accidental death at one occurring approximately every five minutes nationwide. This is shown in the annual statistics, and in 2003 in the U.S. there were approximately 105,000 fatal accidents. The most common causes of these deaths are caused in motor vehicle accidents, fire, smoke, poisonings and falls.

Wrongful Death Claimants in California

In the state of California only specific family individuals are permitted to file a wrongful death claim. Their ability to file the claim will depend on the relationship with the fatal accident victim, which includes:

• The spouse of the victim, their children, dependant stepchildren, minors living in the victims household that were dependant on the victim, and dependant parents. Any minor living in the household dependant on the person, who has died, in order to file a legal claim, must have lived in the household for at least six months.
• When the individual that has been killed has no spouse, children or dependant minors that would be entitled to inherit the estate under the law of intestate succession. Then the parents whether dependant on the victim or not. If there are no parents, then siblings are next in priority to file a claim, then children of deceased siblings and if there are none, then grandparents. If there are no grandparents of the descendant, then children of a deceased spouse.
• When none of these relatives exist, then the next of kin is permitted to file an accidental death suit.

A personal representative of the victim is able to file a wrongful death suit on behalf of the family members that are permitted by California laws to be a claimant in this type of fatal accident. The individual that can do this is appointed by the probate court to ensure the victims estate or assets are handled properly. In the event of a settlement or award of compensation in the wrongful death suit, the representative will distribute the proceeds according to the statutes for wrongful death claims.

Fatal Accident Damages

The legal action is by design intended to compensate the plaintiff’s for what is termed “their own losses,” rather than the losses incurred by the person that died. Certain damages they will not be entitled, which would normally be recovered in a personal injury claim, like the victims medical expenses, property damage and lost wages. These claims will be in the wrongful death victim’s estate and it may be possible for the personal representative to recover this in a “survival action”. The wrongful death claim compensates the heirs, for their own losses, the survival action that belonged to the victim is passed to their estate upon their death.

Punitive Damages?

Punitive damages can be recovered in some survival action cases, if the victim survived the accident, even briefly. It can also be awarded if the deceased property was damaged or lost prior to their death. In a homicide, the victim does not need to have survived briefly in order for punitive damages to be awarded, if the defendant has been convicted of a felony. The wrongful death claim and the survival action can be litigated at the same time.Wrongful death laws are designed in a way that recognizes specific people will suffer their own economic and non-economic loss, due to the demise of the victim. California juries are permitted to compensate the heirs, based upon certain types of economic loss:

• Financial support the deceased would have contributed to the heir, during their life expectancy or the life expectancy of the heir. This is based on the shortest duration of life expectancy.
• Loss of benefits, or gifts the heir may have received from the deceased.
• Reasonable value for household services the victim would have provided to the heir.
• Funeral and burial expenses.

A California jury is permitted to award specific types of non-economic losses in a fatal accident case, including:

• Loss of companionship, love, comfort, care, affection, protection, assistance and society.
• Loss of guidance and training, when applicable.
• Loss of consortium, enjoyment of sexual relations, when applicable.

The jury is not permitted to consider specific aspects, including the grief, sorrow, and mental anguish of the plaintiff. They may not consider the poverty or wealth of the heirs, or the pain and suffering of the victim. One exception in these considerations is when a parent, sibling, spouse or child witnesses the injury or fatality of the victim. In these instances the heirs can claim damages for the infliction of emotional distress. The experienced California wrongful death attorney’s legal representation should not be delayed in a fatal accident case.

California Wrongful Death Legal Representation

When a loved one has died, due to the careless, reckless, negligent or intentional conduct of another party, it is imperative to consult a personal injury law firm specializing in wrongful death accidents. This should be a legal firm that has extensive experience in this particular type of accident, which resulted in the fatality. These types of accidental death cases require expert preparation to ensure a successful outcome. Wrongful death cases require litigation skills and experience in this area of the law to prove the potential worth. The attorney who is litigating the wrongful fatality has many responsibilities including:

• Should an estate be created in the wrongful death lawsuit—this is a consideration the attorney must explore in cases where there are numerous claimants, who are entitled to recover damages under the California wrongful death statutes. The lawyer will analyze, if a probate estate should be created. This will permit the name of the estate to file a claim, rather than the individual heirs.
• Proving the damages and the liability in the fatal accident case to the jury—It is often expensive to prosecute a wrongful death case. This requires the expertise of the lawyer and employment of numerous experts to explain the liability to the jury, proving negligence was the main factor in the death of the person.
• Determining life expectancy—Life expectancy must be determined and requires an analysis of the age, health, lifestyle, occupation and activities of the victim.
• Loss of financial support suffered by heirs—This is the economic part of the wrongful death claim, if the decedent was supporting the heirs financially at the time they suffered fatal injuries. It will require a financial analysis to determine an economic amount the claimants are entitled too, using the employment history, past wages and expected future wages.
• Loss of companionship, society and comfort—These are the non-economic elements of the wrongful death case. There are no formulas or expert testimony that can determine the amount of the monetary award for these damages. This will mainly rely on the attorney’s preparation, their ability to compassionately communicate the events to the jury and detail the amount of negligence involved. These skills are necessary to convince the jury the heirs are entitled to these damages and why they should be advocates for the family or representative.

If you want to talk to Mike about a potential case you can find him here. You can also contact our law firm, Miller & Zois, here.