- Survivor Action
In a survivor’s action, the estate has a claim against the tortfeasor or the person that caused the death for the loss of wages that the decedent would have had from the time of the accident until passing away. It is a limited time, and it’s until they pass away, not the future. They have a claim for medical bills from the time of the accident until they passed away. Those are the typical nature of remedies that we see in a survivor action that’s brought by the estate.
- Wrongful Death Claim
When someone’s lost a loved and wants to file a wrongful death claim, then the first question is, “Who has the right to bring that claim?” The applications are not brought obviously by the person who died, but by other people, his survivors. The law generally says that if you would have been an heir had they passed away, then you have the right to bring that claim.
Now, the good news is it is not quite that limited. The law is broader than direct heirs; it can include what’s called a putative spouse, someone who acted and believed like they were a spouse but weren’t legally married, as long as they were living together. It could even include stepchildren and in some cases, other minor children in the household who were dependent on the decedent. So while technically we look at heirs, it could be a little bit broader to show who is entitled to bring a Wrongful Death Lawsuit.
The next issue that we deal with in a wrongful death action is making sure we identify all the compensable damage. Another question comes to our mind is, “What are the types of injuries that the courts will allow us to recover, and what are the limitations within that?” Typically those compensable damages divide into two categories.
- Financial Damages (Pecuniary Loss):
Within the financial loss, there are three basic large categories we look at: funeral expenses, loss of financial support, and loss of financial contribution. Funeral expenses relatively speak for themselves. It is the cost of putting on the funeral and the services and the related events around that. Those are directly compensable and not usually difficult to establish. Another financial loss that we regularly see in wrongful death actions has to do with what’s called financial contributions. They are a little different than financial support in that financial contributions are typically gift-giving that you would have expected in the future such as Christmas gifts, birthday gifts, things of the like and potentially even a natural inheritance had they been able to finish out their career. One of the most common damages that we see in a wrongful death action has to do with the loss of financial support. When the decedent was someone who regularly contributed to the household expenses, whether it is rent or the mortgage or food or basic bills then that loss of financial support is an element of damages that we can claim.
- Non-Financial Damages (Non-pecuniary Loss):
One of the more delicate subject matters to prove in a wrongful death action are the non-financial losses. It may include obvious things that you would expect such as loss of love and companionship, but they include also loss of household services, loss of training, and advice.
- Workers’ Compensation Rights
In the Workers’ Compensation system, you have to prove that someone passed away as a result of a job incident or the result of the job injury. You also do not have to prove necessarily a family relationship as defined by law but instead dependency. If you are dependent on the person that passed away, then you have those rights and claims within the Workers’ Compensation system, there could potentially be one other remedy, and that has to do with penalties for a serious and willful violation. If the death or the injury giving rise to the end was caused by dangerous and willful misconduct by the employer or the fault of a co-employee, then you may have a right to penalties equal to 50 percent of all benefits paid under the Workers’ Compensation system.
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