Wrongful Death Lawsuits Serve to Hold Responsible Those Accountable for an Accident Which Caused the Death of a Loved One
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You may not understand everything about a wrongful death claim, but you’ve probably heard about personal injury claims at the very least. When someone is injured due to the negligence of another party, you’re likely aware that the injured party can hold them responsible with a personal injury lawsuit. This is how the injured person would seek compensation for their pain, suffering, and medical bills. But, how do you account the loss when those injuries are fatal? In this article, Austin wrongful death attorney Michael Grossman explains how the basics of wrongful death claims work in 5 steps, which are listed below.
We’re going to look at each of the five steps and individually explain them so that you understand everything that goes into filing a wrongful death claim. Make no mistake, a wrongful death is a serious issue and a wrongful death lawsuit is wrought with complex legal matters. This article will only provide you with the rudimentary, basic elements that you will need to know. But, by hiring an attorney, the idea is that the client, you, would be able to distance themselves from the legal process and leave the hard work to us. When we take your case, you no longer need to worry about whether all the correct documents have been given to the court, whether the insurance companies are being honest, or if the defense attorneys are giving you a fair deal. We will shoulder the burden and litigate the case on your behalf, ensuring that you are able to have peace of mind during a tumultuous time in your life.
Here are the five steps for understanding the basics of a wrongful death claim:
Hiring a Wrongful Death Lawyer in Austin
As we mentioned above, we take the initiative when we’re hired and no work will ever be required of you. So, it follows that if you are to hire an attorney to speak on you and your family’s behalf, you will want to select the best attorney for the job. This is important because a successful, competent, and aggressive attorney will be able to fight your case and settle the claim in a timely fashion with the maximum compensation recovered.
Here are two things to consider when selecting a wrongful death attorney in Austin:
- Experience
- Thorough understanding of personal injury and wrongful death laws
- Resources
- Compassion
Experience – A good wrongful death attorney will have a lot of experience. There’s no way around this qualification, an attorney who is representing you in a court of law must have considerable experience to handle the defense attorneys and insurance companies – or your case will likely be settled for a much lesser amount. When a young or “green” attorney is attempting to litigate a wrongful death case, the insurance companies and defense attorney will take advantage of this inexperience by intimidating your attorney into settling the case too early for a much smaller amount than you deserve. Most law firms handle only 2-3 wrongful death claims per year – if that, but we handle approximately 50 per year. Many of these cases are referred to us by other attorneys who recognize that we are industry leaders and feel confident that we will handle the cases with care and excellence.
Thorough Understanding of Personal Injury and Wrongful Death Laws – To successfully litigate a wrongful death case, your attorney will need to have a thorough understanding of both personal injury and wrongful death laws in Texas. It get’s a little confusing at times but essentially, wrongful death claims are filed on behalf of a family member in order to recover damages relating to the death. The decedent likely would have had a personal injury claim had he or she not died, and when the victim does die, that claim is transferred to the family as a “survival claim.” Survival claims exist to de-incentivize the death of an injured victim. Your attorney will need to understand the Texas Wrongful Death Act and be able to identify the elements that are needed to prove the underlying cause of action.
Think of it this way: if you hire an Austin wrongful death attorney for a fatal work accident, but he primarily handles car accident cases, that attorney will not be able to serve you well because they won’t understand the multitude of laws governing workplace accidents. So it’s simply not enough to know about wrongful death laws, you must also be familiar with the underlying cause of action. We’ll go into greater detail later in this article.
Resources – When litigating a wrongful death case (or any case) on a “contingency fee,” the law firm you’ve hired will not actually receive any money until the case is over. That is to say, their fees are contingent upon the victory of your case; if they don’t win, they’re not paid – plain and simple. This means that your Austin attorney will need to have considerable resources available to them so that they can continue to fight your case to their full capacity, even if the case drags out for over 1 year. For a typical law firm, fighting a case for a significant period of time is unfeasible because they won’t have the money, time, and manpower to devote to your case. Like we said earlier, your lawyer may be forced to take an early, smaller settlement if the case becomes too complex or costly for them to realistically represent you.
Moreover, the defense team will typically have a vested interested in defeating your claim because they will likely have a lot of money at stake. When they believe that an attorney has fewer resources than their team, they will often file motions and schedules that have to be fought by your attorney in an attempt to “wear them out,” as it were. You don’t want to drop your case simply because your attorney ran out of time or money to take the case any further.
Compassion – Your attorney will need to be a compassionate, caring person. This might sound cliché or odd, but if your attorney cares for you and is legitimately concerned with making you whole, then you are in good hands. All too often, we hear stories of attorneys who make high promises to their clients and set expectations even higher, but soon drop out or take an early settlement because they are more interested in making money at the end of the day. If you have a multi-million dollar claim on the line, would you have more peace of mind with a law firm that assigns you a case number or a with law firm where the attorneys know your name and oversee your case from start to finish?
Step 2: Understanding the Nature of a Wrongful Death Claim
In this section, we’ll go into more details about the “underlying claim” point we made earlier. There are two important concepts within a wrongful death claim:
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Wrongful death damages and survival claims are the two primary constituents of a wrongful death claim.
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Wrongful death claims are derived from the same elements as the underlying PI claim would have been, including any limitations on liability.
- Loss of spousal services
- Loss of parental services
- Loss of child services
- Psyche treatment expenses
- Funeral expenses
- Mental anguish
- Loss of companionship and society
- Exemplary damages
First, let’s go over the difference between the wrongful death damages and the survival claims. In a wrongful death case, the decedent would have presumably had a personal injury claim to file with damages to recover, had they not died from said injuries. Thus, the survival claim is made by the executor of the estate of the decedent, though this may be synonymous with the wrongful death claimant. The survival claim is not a new cause of action; it’s merely transference of the original cause of action to the executor of estate.
On the other hand, the wrongful death damages are based on a new cause of action. The wrongful death damages are claimed by the family of the decedent for their own pain and suffering because of the death. Basically, this is not an extension of the decedent’s claim, but rather a claim that is filed on behalf of the family.
Second, recall that we earlier mentioned a wrongful death claim is based on its underlying personal injury claim. If the decedent had a personal injury claim from the incident which would have been filed if they had survived the accident, then the value of that claim is now the “survival damages” portion of a wrongful death claim. Of course, if there is no personal injury claim, then there can be no wrongful death claim.
For example, assume that a worker is injured on the job and the proximate cause of his injuries was determined to be the negligence of his employer, who does subscribe to workers’ comp. Texas law dictates that the worker has no legal right to pursue compensation outside of a workers’ comp administrative claim. So then, if the worker had died from their injuries under the same circumstances, their family would also be unable to recover through a wrongful death lawsuit.
Moreover, the wrongful death claim is going to be subject to the same limitations as the underlying personal injury claim would have been. For example, a medical malpractice lawsuit can be filed in Austin, but Texas law places a cap on the amount that can be recovered. So if the case were instead a medical malpractice wrongful death such as a wrongful death lawsuit against an EMS worker, the surviving family members’ wrongful death claim would also be limited by that same damages cap.
Step 3: Understanding Your Role as a Claimant
Without going into too much detail, the claimant is the person actually bringing the wrongful death lawsuit. Texas State law says that only spouses, children, or parents of the decedent may bring a lawsuit in the case of a wrongful death, with some exceptions for common-law marriage, adoptive children, and other like instances.
The executor of the estate is the person who is charged with caring for or overseeing the decedent’s estate (property, belongings, assets, etc). The “executor of the estate” is not a title sufficient for bringing a wrongful death cause of action, but it is often synonymous with the claimant. For example, we had a case in which the executor of the estate was the deceased man’s wife. In this case, she was eligible to bring a wrongful death lawsuit on her husband’s behalf, and she was the executor of his estate. However, her eligibility was determined by her marital status, not her role as executor of the estate. Still, if the executor of the estate is not a beneficiary, they can bring a wrongful death lawsuit on behalf of the decedent no sooner than 3 months after the death, and only if all other beneficiaries do not object.
For small children who have lost a parent, the State of Texas allows a wrongful death cause of action to be pursued until the child is 20 years old, with certain exceptions. This article explains this issue in greater detail.
Step 4: Understanding Wrongful Death Damages
Here is a brief list of the most common types of wrongful death damages. Notice that some of these damages can be economically or numerically quantified, while others seem more abstract. There are different ways to account for the more abstract types of wrongful death damages, like mental anguish, and these articles will explain them.
Read about how these damage awards are split in a lawsuit. In a wrongful death lawsuit, the court will also require proof and evidence of wrongful death damages and survival damages before ordering the defendant to compensate you. This is why it is crucial to retain an experienced attorney; to ensure that the evidence is filed properly and correctly presented to a jury. Without this assistance, your evidence will likely be lost, and will therefore never be considered by a jury, resulting in a potentially lower settlement or no settlement at all.
Step 5: Litigating a Wrongful Death Case
The litigation basics for a wrongful death case are essentially the same as those for a personal injury case. There are important documents that must be filed, like the motion to compel, motion to strike, show authority, exclude, and several others. Depositions are then used by the attorneys on both sides to gather eyewitness testimony if applicable, expert witness testimony, and to interview the claimants.
Other important documents in the litigation process are admissions and interrogatories, both of which are documents filed with the court and sent to the defendants. The admissions are true/false questions such as, “you were driving a car on the night of June 8th, correct?” On the other hand, interrogatories are a list of specific questions that have specific answers, not just true/false answers.
Another important part of litigation is subpoenas and court orders. In short, a subpoena is a request filed with a court, asking them to issue an order – such as ordering the defendant to retain a piece of evidence.
The demand phase of the litigation process is the part with which you may be the most familiar. In most legal dramas on television or in cinema, the plaintiff usually alleges that the defendant has wronged them to the tune of, say, $1,000,000. The defendant would then argue that their number is far too high, and the plot-line continues. In a wrongful death case, the demand phase is where our attorneys gather the evidence and depositions, evaluate the case, and send a demand letter to the defendant, asking for specific compensation.
The demands phase also includes a Stowers demand, which is used to put pressure on an insurance company to pay out their policy limits. The insurers typically comply in order to avoid being held liable for even more money. We have used this tactic to receive the full amount from insurers on dozens of occasions.
Hiring Grossman Law Offices
When selecting your attorney for a wrongful death cause of action, please consider these things that we have mentioned. Your attorney should be a compassionate, hard-working, experienced, and have the available resources to fight your case from start to finish.
Our attorneys at Grossman Law Offices have extensive experience with litigating wrongful death cases and we have settled hundreds of lawsuits in the Austin and Travis County area since the firm’s inception in 1990. If this article has raised any questions for you, please call us at 1-855-257-1111 for a free consultation. We are available at any time, day or night, and our attorneys will discuss the merits of your potential case with you, as well as answer any questions you may have.