Nobody wants to be involved in a wrongful-death lawsuit.
Unfortunately, the laws and rules now governing the process for a grieving family seeking compensation are complicated and, candidly, a little cold.
In the distant past, when a loved one died due to the neglect of another person or company, you could bring a wrongful-death lawsuit where the death occurred or where the defendant resided, and it was really just that — you were suing someone for wrongfully killing your loved one, and your damages included the value for the loss of that life.
It was pretty much a common-sense approach to a claim.
Now, however, all wrongful death claims have been abrogated by new laws and some pretty onerous rules that can serve as traps to the unsuspecting.
Perhaps the most difficult thing for folks to deal with is that you are not allowed to ask the jury to award you compensation that equals the loved one’s life. How valuable were they to you? How much did you love them and did they love you?
Those things do not fit well into the current statute, although they can possibly be evidence if they relate to the claim for damages.
Under the current legal structure, you are only able to seek lost wages, lost earning capacity as it relates to the person’s estate, pre-death pain and suffering, loss of use of the body, interest on funeral expenses and, perhaps most importantly, what is known as “loss of consortium” damages.
The wages and earning capacity is what it appears to be. For wage earners, this is fairly mathematical — considering their past job and future potential, but you do have to reduce for future spending as well.
For folks who do not have a paid wage — such as a stay-at-home dad or mom, or a child — this can get even trickier to determine.
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For instance, if the decedent is a minor, you would need to produce evidence of who they would have become academically and vocationally. and this can be speculative.
If your loved one dies more or less instantly, you are not entitled to seek pain and suffering related to their passing.
This, too, gets complicated if there are periods of altered consciousness before death. If you can establish some consciousness and some pain, usually this evidence will be considered.
LOSS OF CONSORTIUM
For the most part, when lay people think about suing for the loss of a loved one, they are probably thinking in terms of a loss of consortium.
In simple terms, this is the loss of an important, close, family relationship.
This can be for the loss of a spouse, parent or child. It does not apply to stepparents, grandparents, siblings, etc. Perhaps, since we value these relationships in life, we should also value them in the context of a wrongful-death lawsuit, but our current laws do not.
Loss of consortium also does not cover grief. It truly means the loss of companionship, services, affection, etc. — the things that make up a good relationship.
In order to seek any of these damages you will need evidence and testimony such as documents, photographs, videos and the sworn statements of friends and family.
In order to even bring a wrongful-death lawsuit, you must open an estate. Probate is necessary, even if there is no will and no other reason to open an estate.
Furthermore, the estate must be opened before you sue, not simultaneously or afterward. This is because the estate technically owns the right to bring the lawsuit.
Generally, you have two years from the date of harm to bring a personal injury lawsuit.
With respect to a wrongful death claim, do not wait until two years from the death. Instead. you should file within two years of the harm.
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For example, if we assume a car accident killed your loved one, but they died three weeks after the crash, bring the lawsuit within two years of the collision, not two years from the death.
Other limits also might apply, such as a dram shop claim or an out-of-state defendant.
All this really means is after you have faced the initial, devastating grief of such a loss and brought some order back into your life, you probably should talk to an attorney — sooner than later.
Pressley Henningsen is a lawyer at RSH Legal in Cedar Rapids. Legal Matters appears monthly.