Wrongful Death Resource Center

A Wrongful death case is the most emotionally charged case that exists in personal injury law. Not only has a life been lost, the survivors are left with giref, heartbreak, and a very complicated legal matter.

Survivors are often too distraught to focus on the immediate need for a prompt legal investigation and/or the preservation of evidence. Not allowing an attorney to effectively complete these steps for you can mean the difference in having a case and not having a case.

It is critical that the survivor(s) retain a successful wrongful death attorney. Wrongful death claims exist in a specialized area of law, so don't simply choose any attorney. Demand a law firm that understands your case, and also set mandates in the area or wrongful death litigation. Before exiting our Wrongful Death Resource Center, please continue down the page to learn more about how the founder of Keller & Keller changed the wrongful death laws forever.

A wrongful death claim can arise from any number of circumstances: motor vehicle accidents, bicycle accidents, dog attacks, premise accidents, supervised activities, defective products or negligent repair, etc,.

Keller & Keller has represented families for all types of negligent acts, some that included:

* A drunk driver striking a pedestrian
* A semi-truck rear-ending a car due to faulty brake repairs
* A child being attacked by a vicious, untethered dog
* A vehicle losing control due to unsafe roads
* A child drowning due to lack of safety precautions at a pool

Every state has a civil "wrongful death statute" or set of statutes, which establish the procedures for bringing wrongful death actions. In Indiana, Michigan and New Mexico, survivors must prove fault in order to succeed in any claim against the other driver's insurance company.

In order to win a wrongful death case, the following elements must be present:

* The death of a human being
* Caused by negligence of another person, company, or entity
* The survival of family members who are suffering monetary injury as a result of the death
* The appointment of a personal representative for the descedent's estate.

It is crucial to obtain a knowledgeable attorney who understands the importance of:

Who can file a wrongful death lawsuit?

* In most states, such persons as the decedent's immediate family members, such as the surviving spouse and children, and sometimes parents and siblings, may bring the action.

What can be recovered in a wrongful death suit?

* Medical, hospital, and funeral expenses
* Compensation from the decedent's pain and suffering while conscious, between the time of injury and the time of death
* Losses sustained by the decendent's spouse, children or next of kin, including
* Loss of financial support, gifts, and future contributions
* Loss of parental training and guidance
* Loss of companionship, love, care and comfort.

What are "survival actions," and what do they include?

In addition to damages for wrongful death, you may also be able to recover damages for personal injuries that the decedent sustained. These are called "survival actions", since the personal injury action survives the person who suffered that injury.

In a "survival action," the jury may make inquiries to help determine the amount of damages, including what the decedent went through before his or her death, such as:

* The degree of consciousness
* The severity of the pain
* The apprehension of impending death, along with the duration of such suffering

Is there help for the people left behind?

The death of a family member can affect an adult or child so severely that they have difficulty carrying on with daily life. At this time, friends and family members may look to various resources that are available, to help ease them through this difficult time, which may last for months or years.

In addition to the help that your wrongful death attorney will provide, other professionals are available to assist in a variety of areas. Keller & Keller has recommended the following to past clients:

Grief Counseling and Support Groups: There are many credible and helpful grief support groups and social services agencies available, in addition to religious organizations and medical professionals. There are also web sites such as Mayoclinic and WebMD that provide a wealth of helpful information concerning grieving, etc,. Your medical professional will also be able to suggest additional options.

Social Security Agency: This agency should be contacted regarding death benefits and survivor benefits for any children.

Keller & Keller will also assist you with the following professional responsibilities:

Insurance Companies: we will help determine what benefits are available on insurance policies, including mortgage insurance, life insurance and pensions.

Estate, Tax Planning, Probate and Estate Administration: we will be able to assist with changing documents, probate and property title transfers.

Wrongful Deaths Involving Children

There are over 100 deaths per day in America due to car accidents, many of which involve children. In fact, the leading cause of death in children over 1 year of age is an accident, with automobile accidents accounting for the majority of these deaths. Other common causes of death for children are:

• faulty car seats
• unsafe swimming pools
• falls
  
• dangerous equipment
• animal attacks
  
  

Wycko v Gnodtke

How much is a person's life worth? No one can honestly answer that question, but it is something that courts and juries are asked to do each time they are faced with a wrongful death case. And because the primary measure of damages in a wrongful death action is financial, the death of a child brings up some difficulties.

When an adult dies, the financial loss is considered quantifiable. For example, when a parent dies, a child may seek damages for income, nurturing, guidance, and loss of the parent's care. When a child dies, the parents' recovery is limited to their financial loss.

Prior to 1960, most jurisdictions restricted recovery for the death of a child to lost provable earnings and support to parents. Before 1960 this formula was more applicable, because children often worked, contributing significant labor to the family farm or business. However, as society changed, and children began contributing less to the workforce, the more difficult it became to present provable earnings. This presented a perplexing problem for the judicial system in calculating the economic loss of a child.

In 1960, George Keller, the founder of Keller & Keller, won the famous and precedent-setting case of Wycko v Gnodtke in the Michigan Supreme Court. This case changed the views of the Courts forever. The opinion declared that the traditional child labor formula (basically the probable wages minus loss of keep) did not adequately measure the child's loss to the parents.

The Courts agreed that the value of life also included the value of mutual society and companionship. The Courts also agreed that loss could be measured as "lost investment" and held that the parent's investment in raising a child is an appropriate basis for damage recovery. Most states now consider the parents' recovery of loss of society and companionship of their child, in addition to the pecuniary loss, in determining the recovery of damages.

*Again, don't simply choose any attorney. Select a law firm that set a precedent in the area of wrongful death.

Statute of Limitations for Wrongful Death Lawsuits

Every wrongful death lawsuit is subject to a "statute of limitations". The statute of limitations is a law which places a certain time limit for a loved one to initiate a lawsuit. If the claim is not settled, or an action is not filed before the statute of limitation expires, in most cases you permanently waive your rights to recover any damages.

However, there may be an exception to the standard statute of limitations in specific situations, or there may be may be multiple causes of actions which allow different lengths of time to bring a claim. It is for these reasons that you should consult with highly experienced attorneys such as Keller & Keller, who can help determine which statutes apply and help preserve the right to recover damages.

Indiana - a cause of action accrues on the date of death and must be filed within two years of that date

Michigan - a cause of action accrues on the date of death and must be filed within three years of that date.

New Mexico - a cause of action accrues on the date of death and must be filed within three years of that date

Government Entities - a cause of action must be filed within 180 days

At Keller & Keller, our goal is to insure that we provide the highest level of legal representation to our clients in an effective and compassionate manner. In times of loss, it is difficult for family members to deal with all the problems and uncertainties involved in a wrongful death lawsuit. Our experienced attorneys will do the work for you.

Determining the Damages

Pecuniary, or financial, injury is the main measure of damages in a wrongful death action. Courts have interpreted "pecuniary injuries" as including the loss of support, services, lost prospect of inheritance, and medical and funeral expenses. Most laws provide that the damages awarded for a wrongful death shall be fair and just compensation for the pecuniary injuries that resulted from the decedent's death. If the distributees paid or are responsible for the decedent's funeral or medical care, they may also recover those expenses. Finally, a damage award will include interest from the date of the decedent's death.

Determining Pecuniary Loss

When determining pecuniary loss, it is relevant to consider the age, character and condition of the decedent, his/her earning capacity, life expectancy, health and intelligence, as well as the circumstances of the distributees. This determination may seem straightforward, but it often becomes a complicated inquiry, keeping in mind that the measure of damages is actual pecuniary loss. Usually, the main consideration in awarding damages is the decedent's circumstances at the time of death. For example, when an adult wage earner with dependents dies, the major parts of the recovery are: 1) loss of income, and 2) loss of parental guidance. The jury may consider the decedent's earnings at the time of death, the last known earnings if unemployed, and potential future earnings.

Adjustments in the Jury's Award

In a wrongful death action, the jury determines the size of the damages award after hearing the evidence. The jury's determination is not the final word, however, and the size of the award may be adjusted upward or downward by the court for a variety of reasons. For example, if the decedent routinely squandered his income, this might reduce the family's recovery.

Similarly, the courts will reduce a jury's award if the decedent had poor earnings, even though he was young, had great potential, and supported several children. At the same time, a jury may award lost earnings despite the decedent's having been unemployed, if he had worked in the past and if the plaintiff presented evidence of the decedent's average earnings while employed. If the plaintiff fails to present such evidence of the decedent's average earnings, the court may set aside the jury's damage award and order a new trial.

Using Expert Testimony to Determine Pecuniary Loss

Plaintiffs are able to present expert testimony of economists to establish the value of the decedent to his family. Until recently, this testimony was not admissible when a housewife died, but that rule has changed. When the decedent is a housewife who was not employed outside the home, the financial impact on the survivors will not involve a loss of income, but increased expenditures to continue the services she was providing or would have provided if she had lived. Because jurors may not be knowledgeable regarding the monetary value of a housewife's services, experts may aid the jury in this evaluation.

Punitive Damages

Punitive damages are awarded in cases of serious or malicious wrongdoing to punish the wrongdoer, or deter others from behaving similarly. In most states, a plaintiff may not recover punitive damages in a wrongful death action. There are some states, however, that have specific statutes that permit the recovery of punitive damages. In states that do not explicitly allow or disallow punitive damages in wrongful death actions, courts have held punitive damages permissible. An attorney will be able to advise you as to whether your state allows punitive damages.

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