October 12, 2020 in Concerns
Nothing can make up for the wrongful death of a loved one. It is something nobody ever wishes to experience. If you lost a loved one due to someone else’s negligence, you may want to file a wrongful death lawsuit. While this doesn’t bring the victim back, it can help compensate you for the devastating loss.
Wrongful death refers to the death of someone as a result of negligence or misconduct. This means that someone caused the person’s death by failing to act in a reasonable or careful manner.
Gordon & Gordon Law Firm understands the burden that losing a loved one can put on a family. We want to ensure that you recover financially so you have more room to recover emotionally. In this post, we’ll cover the who’s, what’s, and how’s surrounding this lawsuit. Here are your most frequently asked questions about a wrongful death lawsuit.
What Is A Wrongful Death Lawsuit?
A wrongful death lawsuit is different from any criminal charges that may have resulted from the fatality. It is a separate civil action brought against the person or people responsible for the death. A criminal charge seeks punishment like prison or probation for the guilty party. The purpose of a wrongful death lawsuit is to recover compensation from losses or damages. We’ll cover those types of losses later on.
Most wrongful death lawsuits follow behind a criminal trial. They often use the same evidence, but need a lower standard of proof. This means that while someone might not be found guilty of a crime, they can still be liable for a wrongful death.
There are many circumstances that might bring about a wrongful death lawsuit. Some of which might include any of these situations that result in the death of an individual:
- Criminal Behavior
- Auto, Train or Airplane Accident
- Medical Malpractice
- Workplace Accidents
- Occupational exposure to harmful substances or conditions
- Negligence During a Supervised Activity
- Drowning, poisoning, etc.
- Product Liability
Who Can File A Wrongful Death Lawsuit?
To file the lawsuit, many states require the decedent’s personal representative to make the claim. This is most likely the bank or person who was responsible for managing their estate. If they did not already have a personal representative, the court will appoint one. This person will become the personal representative of the estate of the victim. It’s generally one of the wrongful death beneficiaries that’s appointed by the court.
In other states, like Louisiana, the estate can only file a claim if there are no surviving relatives to do so. This means that family members of the deceased get first priority. The following is the order in which family members are able to file in Louisiana:
- The surviving children or spouse of the deceased.
- If no children or spouse are living, the surviving parent(s).
- A parent that abandoned the decedent in childhood is treated as deceased.
- If no parents are living, the surviving sibling(s) of the deceased.
- Finally, if no siblings are living, the surviving grandparent(s) of the deceased.
Adopted family members have equal rights to biological family members in any of the above categories.
How Are Wrongful Death Settlements Paid Out?
Wrongful death settlements are often paid out by insurance providers. If the settlement exceeds the liability coverage limit, the defendant might need to pay the remaining amount. In the case that the guilty party doesn’t have insurance at all, they’re still held responsible for the settlement.
A wrongful death suit covers both economic and noneconomic losses. Economic losses refer to measurable sums. This includes the following:
- Medical bills and expenses
- Funeral and burial expenses
- Damaged property bills
- Lost benefits and wages
- Value of household services lost
Some states allow the recovery of the decedent’s total lifetime earning capacity.
Noneconomic losses refer to losses that are not available in the form of a bill or receipt. They are still losses, but cannot measure in the same way. These include:
- Pain and suffering the victim may have suffered before their wrongful death
- Pain and suffering of the family members
- Loss of:
- Emotional support
- Goods and services provided by the decedent
- Loss of:
The money you collect from a wrongful death lawsuit is generally not taxable. Yet there are some cases where it might be. It depends on the circumstances behind the awarded money.
For example, compensatory payments may not be taxable, but punitive damages are. Compensatory payments refer to the economic and noneconomic losses. Punitive damages mean to punish the guilty party for their behavior. A wrongful death attorney will help you determine what damages you’re able to recover and what of those is taxable.
Who Gets The Money In A Wrongful Death Lawsuit?
It’s obvious that the victim cannot recover damages from a wrongful death lawsuit. So who can?
The money is generally distributed between the deceased’s estate and their surviving family members. This can include the victim’s spouse, children, parents, siblings, and sometimes grandparents.
In Louisiana, the money goes to whoever is successful in filing the lawsuit. If a year passed before a spouse filed and the deceased’s children file, the money would go to them.
In states like Texas, the jury decides how the money gets distributed. There are also some states where anyone who would’ve inherited from the deceased person is eligible to file a lawsuit and receive damages.
How Long Does It Take To Settle Wrongful Death Claims?
Before we get into how long it takes to settle the claims, we should inform you of how long you have to file one. Every state has its own statute of limitations. In Louisiana, the statute gives surviving family members one year to file a wrongful death claim. This means that family members have one year from the date of the death to file in court.
In some states, only the spouse is able to file a lawsuit within the first year following their partner’s death. If a suit is not filed within a year, the right becomes available to any surviving children.
After filing a wrongful death lawsuit, it can take anywhere between 1-4 years to settle.There are some cases when it might take as little as a few months. If the case gets filed outside of court, it’s likely to take much less time. If it’s taken to court, you can expect a longer time frame. It comes down to how your lawyer and court system works with you.
Contact Gordon & Gordon Today
If you lost a loved one due to negligence or misconduct, you may have a wrongful death lawsuit on your hands. Contact Gordon & Gordon today to file your claim. Our experienced wrongful death attorneys will make sure you get the compensation we know you deserve. Let us help you through this difficult process. Visit our website or give us a call at (318) 716-HELP.