What To Do When A Loved One Dies As A Result Of An Accident
Wrongful death cases aren’t criminal prosecutions that carry the possibility of imprisonment. They’re civil lawsuits that are brought for purposes of compensation for damages after a family member dies as a result of the negligence, recklessness or intentional act of somebody else. These cases are brought by the family members of the decedent or the administrator of the decedent’s estate. Nearly all of such cases are based on the law of negligence. Here are some common types of accidents that trigger wrongful death lawsuits:
- Motor vehicle crashes.
- Airplane, train and bus crashes.
- Construction or industrial accidents.
- Nursing home negligence.
- Medical malpractice.
Who Can File a Wrongful Death Lawsuit?
In most accident cases, it is the victim’s responsibility to come forward and file a personal injury lawsuit. In the case of wrongful death, however, a person representing the estate of the deceased victim must file the suit on behalf of the deceased individual. Commonly, the executor of the decedent’s will is the party that will initiate the legal action. Laws regarding who can be named beneficiaries in wrongful death cases vary in different states, but always include immediate family members, and can be expanded to include more distant relatives and non-related dependents. You may be able to pursue a wrongful death lawsuit if the death of your loved one resulted in significant financial hardship for you, and if the death was the result of an accident in which someone behaved negligently.
The Burden of Proof
Even if a criminal prosecution is pending, a wrongful death case can be filed. It would be heard in a separate courtroom by a separate judge and jury than the criminal prosecution. There’s a different burden of proof too. Because a person can lose their freedom and be imprisoned for a criminal conviction, the law requires the prosecution in a criminal case to prove the defendant guilty beyond a reasonable doubt. With no chance of imprisonment in a civil wrongful death case and money damages being the sole issue, a lower burden of proof known as a preponderance of the evidence applies. In order to preponderate, the plaintiff need only show that his or her version of events was more likely true than not true. Given the two different burdens of proof, a person can be found not guilty in a criminal case but guilty in a civil case.
The Statute of Limitations
Every state has its own time period for when a wrongful death lawsuit must be filed. For example, in Tennessee, the general rule would be one year from the date of death, but in Florida, it’s two years from the date of death. The general rule for failing to file a wrongful death lawsuit within the time prescribed by law is harsh. It’s highly likely that the case would be dismissed forever. That’s just one reason why seeing a wrongful death lawyer soon after the death of a family member is strongly recommended.
Beware of the Opposing Insurance Company
The opposing insurer knows that in the days and weeks following your loved one’s death, you’ll be in shock, grieving and exhausted. It also knows that it’s in for significant financial exposure, so it’s going to try to reduce that exposure. Don’t give the opposing insurer any information. It’s only trying to prepare its defense of your wrongful death claim or lawsuit. No law requires you to help it prepare that defense. Rather than giving information that will probably be used against you in the future to attack your credibility and attempt to harm your case, you’re far better off by retaining an experienced, effective and compassionate wrongful death lawyer to represent your family’s best interests.
Quality and Not Quantity
The amount of any evidence that an attorney might have on behalf of surviving family members is irrelevant if it doesn’t demonstrate that the accident at issue was the direct and proximate cause of the decedent’s death. Any wrongful death case must be carefully built over time by using witness statements, police reports, medical records, coroners’ inquest transcripts and quite often, video footage or black box data.
Evidence can disappear or be disposed of, witnesses can vanish into thin air and the recollections of witnesses as to what happened and how it happened can get fuzzy. Insurance companies and their defense attorneys are going to make any wrongful death case complicated. Regardless of the shock, grief and exhaustion that all of your family members are suffering from, somebody in your family needs to be strong and step up soon after your family member’s death to meet with and retain a compassionate yet aggressive and respected wrongful death lawyer. That’s the only way that you’ll see the compensation that you deserve.