What Exactly Is Wrongful Death?

The first thing to understand about a wrongful death lawsuit is that it is a civil rather than a criminal suit. Punishments like imprisonment, fines, loss of the right to own a firearm, or even execution are all possible in a criminal case.

In a civil action, however, the only result the plaintiff is seeking is reimbursement for specific losses caused by the negligence or misconduct of some other person or corporate entity.

Another difference between civil and criminal cases is that criminal cases are typically brought against a defendant by the state, whereas, in civil matters, the party that suffered loss or an heir representing him/her pursues the case.

If you are injured or suffer financial or non-economic losses (pain and suffering) due to the wrongful actions of another, you can file a personal injury suit. If the injured party dies, however, then it is up to those who survive him/her to file the suit in the place of the deceased. Alternatively, a person entrusted with the deceased's estate may also file the suit.

In order to secure compensation in a wrongful death suit, the following points must be demonstrated to be true:

• You are a surviving family member or estate representative of a person now deceased.
• Another party failed to exercise reasonable concern for the safety of others and is guilty of a negligent act.
• The negligent act(s) in question caused the death of your deceased relative.
• You have suffered monetary and/or other forms of loss due to the death of your loved one.

The cause of the injury can be any number of things, from medical malpractice, to drunk, drugged, or distracted driving, to manufacture of defective or dangerous products, to failure to remove obvious dangers from your property.

Technically, any injury or monetary loss whatsoever could be sued for, but personal injury cases are not normally pursued unless the loss was quite severe. In the case of wrongful death, the most severe loss possible (the loss of a loved one) is at issue.

In wrongful death cases, the standard of proof is not so difficult to meet as in criminal cases, where establishing guilt "beyond all reasonable doubt" is required. Instead, the plaintiff must provide merely a "preponderance of evidence" in his/her favor to win the case.

The California Code of Civil Procedure Section 377.60 spells out many of the legal details of how wrongful death lawsuits are handled in our state. One of the most basic points covered in the Civil Code is the requirements you must meet to be eligible to bring a wrongful death suit forward.

You might think that the answer to this question would be very simple, but in reality, there are a number of different ways you can qualify to file in behalf of one deceased:

1. You were the deceased's spouse, "domestic partner," or child at the time he/she passed away. You can also qualify by being his/her parent or stepchild.
2. If you cannot qualify under #1, then if you are the person to whom the deceased's property would fall if left to ordinary rules of inheritance (regardless of actual inheritance spelled out in a will/testament), you can still qualify.
3. If you were a dependent of the deceased and his "putative" spouse, child, or parent. Putative here means that though the relationship was found to be invalid (perhaps, an unlicensed person performed the marriage or technical problems existed in adoption papers), that if you "believed in good faith" that the relationship was legally sound, you can still file the wrongful death suit.
4. You were a minor who lived at the deceased's house for 6 months or more before his/her death and were dependent on him/her for 50% or more of your support.

Note that it will normally be the spouse or child or the deceased who file a wrongful death suit, but if none exist, it is usually the parents or siblings who do so. However, if the deceased's parents were dependent on him/her, then they can file even if a spouse or child also has the right to file.

The total amount that one can collect in damages in a wrongful death suit varies greatly from case to case, based on the specific circumstances involved.

For example, you can file a wrongful death lawsuit based on the death of a minor or of an elderly person, but compensation in such cases is normally not as high. You can also file a wrongful death claim even if the deceased was not producing any income, but compensation would then be based on the value of household services provided and on pain and suffering caused by your loss.

In general, damages are divided into two broad classes: those that go "to the estate" and those that go directly to a plaintiff based on his/her personal losses.

But there are other ways of classifying losses as well. Those damages that can readily be calculated in a monetary fashion are called "pecuniary," while non-economic damages like pain and suffering are called "non-pecuniary." But some call pecuniary damages "special damages" and non-pecuniary damages "general damages." So, there is a difference of terminology to be aware of.

To receive pecuniary compensation, you must show that you had a "pecuniary interest" in the matter, meaning that you would likely have benefited financially in some way had the deceased continued to live.

Some specific types of damages you can pursue in a wrongful death suit include:

• Loss of financial support you would have received from the deceased.
• Loss of household services the deceased would have performed.
• Loss of income the deceased could reasonably be expected to have produced.
• Property damage sustained by the deceased's estate.
• Medical expenses related to the accident that led to the deceased's death. That is, the cost of caring for him/her just before he/she passed away.
• Funeral and burial expenses.
• Loss of companionship or parental care.
• Emotional or psychological pain and suffering.

At Los Angeles Personal Injury Attorney, we have deep experience in uncovering and legally backing up every form of compensation you are entitled to. We understand the complex rules that govern who can be compensated, for precisely what, and how much. We have a long track record of winning full and fair compensation for clients across the L.A. Area, Southern California, and beyond.

In California, you usually have two years from the date of death to file a wrongful death lawsuit, which is the same statute of limitations used by most other states. It is also the same statute of limitations used for personal injury suits.

Understand how important it is to file before "the clock" runs out. Unless there are specific exceptional circumstances, failure to file within the two-year window means you (and the whole family and estate) forever lose the right to file.

If a court decided to simply make an exception and let you file late or if the defendant decided to allow you to file past the two-year statute of limitations, you still could. But neither of those two situations are likely to occur.

But there are some more realistic ways that you could still file more than two years later. First, there is the discovery rule. This means that if you could not have been expected to realize the connection between the deceased's death and a negligent act, your time limit will be based on the date of discovery. The two years will be "tolled," meaning delayed; and the clock will begin running from the date of discovery.

Another scenario is when a minor has a rightful interest in a wrongful death suit. The clock does not begin to run until the child becomes an adult (at age 18).

However, also note that the wrongful death claim cannot simply be based on a personal injury claim that the deceased failed to file within two years of his injury or the date he discovered his injury. To collect based on such a claim, the deceased must have still had time to file the personal injury suit, or he must already have filed it before he died. But none of this is to say that other damages involved in a wrongful death claim may not still be filed by a valid party within the two-year statute of limitations from the date of death.

But we need to clarify further on the discovery rule. The point we want to emphasize here is that this rule can work for or against you, depending on the circumstances. Technically, the clock begins to run on the date of discovery of the cause of death. Sometimes, the cause is not known for, say, a year after the death, giving you three years to file a wrongful death suit. Other times, a terminal diagnosis a year before the date of death might mean you have only one year from date of death to file the wrongful death suit.

But what if a person dies from a cause known three years before he/she passed away? Can you still file a wrongful death claim? The answer is "no." The reason is that it is considered that the deceased "should have" filed a personal injury suit within two years of the terminal diagnosis. 

Finally, let us just say a word about the purpose of statutes of limitations. It may seem unfair that there should even be a time limit, but on the other hand, the state is worried about wrongful death suits hanging over people's heads indefinitely, which could also be considered unfair. Thus, the time limit is meant to prevent "surprise" suits after many years of silence, and to get plaintiff's motivated to act more quickly or not at all.

But it's also true that the turmoil over a loved one's passing and the hesitancy of many to file any kind of suit (it's something they've never done before), causes just compensation to be lost forever because of the two-year time limit.

At Los Angeles Personal Injury Attorney, we can move very quickly through the legal rigmarole of filing a wrongful death suit, even if time is almost up.

At Los Angeles Personal Injury Attorney, we have a long track record of winning maximized settlements in wrongful death cases. Our attorneys are well seasoned fighters who know how to navigate even the most unusual or difficult legal circumstances and secure the best possible outcome. 

We begin each case with a commitment to the best interests of our client, and we pursue that interest in the wisest and most effective way possible.