When Can You Make A Wrongful Death Claim?
Wrongful death is when you have a death involving a loved one that occurs as a result of the negligence or intentional reckless conduct of another, or even an entity, like a city or a municipality. So, that can be any type of incident involving the death of someone from someone’s negligence or conduct that you can make a recovery for under the eyes of the law.
At The Sexton Law Firm, the wrongful death cases we see are generally from car accidents, motorcycle accidents and bicycle accidents. Those are the vast majority of death cases that we do see. We also see them in the workplace. We see a lot of work accidents that unfortunately result in the death of an employee. Generally, those are covered under workers’ compensation laws. Sometimes, you can have a death that occurs at work where there is a workers’ compensation case and also a personal injury wrongful death case. The person could be employed at work and is killed as a result of the conduct of an entity other than another co-employee or his own company.
If he was working in a warehouse and company X was delivering a pallet of merchandise on a forklift and the forklift driver from that different company causes it to drop on top of the worker and it kills him, not only would he have a workers’ compensation case, but the family would also have a wrongful death against the company that dropped the pallet on him.
In the wrongful death case, it is almost a given that some public entity is going to investigate it, whether it is OSHA, under the workers’ comp, or some highway patrol or police department. There is going to be some public entity investigating that because there is a fatality involved. Nine times out of 10, the entities that investigate these types of accidents generate sufficient information, witnesses, facts of the accident, documentation of the scene, all those things that help in determining who is at fault in a wrongful death case. Paramount is witness statements. We just had an accident with a bicyclist who was killed. Unfortunately, all the witnesses were against the bicyclist. He was basically not following the rules of the road and was actually cutting across traffic. In fact, one of the witnesses when they saw the bicyclist cutting across traffic, actually held her breath because she knew something bad was going to happen. Sure enough, he crossed in front of another vehicle and got run over.
Nevertheless, there were some facts placing a small amount of fault on the driver, and believe it or not, we were still able to resolve that case for a not insignificant amount of money. Remember, in California it has to do with comparative fault as well. So, being 100 percent in fault, even in those circumstances where it seems that the bicyclist is totally at fault, there is still an argument that maybe the driver was slightly inattentive or doing something that somewhat contributed to the accident such as being able to stop in time, maybe traveling a little too fast for the conditions, maybe distracted on the cellphone, by the radio, or by the passenger in the vehicle that he was talking with. So, there are other factors, too. Sometimes, even when the facts seem contrary, having an attorney can help actually make some type of recovery by doing a full investigation into the accident and talking with some of the witnesses.
Recovering Damages In A Wrongful Death Case
The recovery of damages in a wrongful death are a little bit different than what you might have in a personal injury car accident where you can get your medical bills paid, your pain and suffering, lost wages and maybe some out-of-pocket expenses. In wrongful death cases, the family is entitled to funeral and burial costs, costs of medical treatment provided to the decedent person prior to his death, damages for the loss of services of the decedent that he would have provided or she would have provided to the surviving spouse.
It can also include things like loss of comfort, care, guidance, advice, companionship, and loss of consortium, it can be sexual relations, or now “I have to write all the checks to pay the bills where the former decedent used to do that.” You are also entitled to get other things you might not think of: for example, there could be issues of loss of pensions, loss of retirement benefits and loss of medical coverage.
In any type of injury case, there is something called a statute of limitations, and they factor especially in wrongful death cases. If it is a public entity or government entity, the statute is six months to make a claim. We have seen many cases over the years where clients come to see us beyond the six months, and my heart just drops because I have to tell them they just waited too long. They might say, “Well, my father died. My mother died. My husband died. This isn’t right. You are telling me I can’t make a claim now?” I have to tell them, “Yes. You are beyond the six months,” and there is absolutely nothing they can do about it.
Wrongful death cases, as far as damages and recovery, have a statute that lists who the persons or entities are, persons who are entitled to recover in a wrongful death case. Basically, heirs collect in a wrongful death case. Usually, it is the surviving spouse or domestic partner. In some other states, they do not allow domestic partners, but in California they do. Surviving spouse means that you are married. Children and any issue of any deceased children may also be entitled to. So, if you have a child and that child is deceased but they have a child, your grandchild, they can be in line as far as an heir under the statute to receive compensation under wrongful death.
If none of those apply but you can show dependency (you might be a stepchild or even a parent living at your son’s house and the son is killed in a wrongful death case) you may be entitled to compensation under the wrongful death statute. It is not necessarily the case where the only people who can recover are spouse and children. There can be other people who are entitled to recover depending on whether or not they have been dependent on the decedent, the person who was killed in a wrongful death action. If you can show dependency, you may be entitled to receive wrongful death benefits in California.
Experienced Guidance Through Complicated Cases
The Sexton Law Firm can help in any type of accident case, including wrongful death. As mentioned previously, there are a lot of potential damages in wrongful death that are not available in your general run-of-the-mill injury-type case. The average person might not even think that they are entitled to recovery for some of these things. We mentioned some of them before, like loss of pension, loss of retirement benefits, loss of health coverage and there is a host of other things that you can claim as a future loss because your loved one was killed in an accident and now you are going to be without those benefits in the future because of that. It is not just the normal pain, suffering, paying the medical bills and just the loss of the society and comfort of that individual.
There are many other issues to be explored as to potential damages that maybe a lot of other people would never even think about.
Our lawyers are very happy to help the families, try and get them the monetary compensation they deserve, and to try and guide them to what they need as far as treatment if they are experiencing some psychological issues. We make sure we are covering all the bases for them and dotting the I’s and crossing the T’s. Call us today for help with your wrongful death claim at 619-678-1833. You may also send us an email and we’ll respond promptly. We have offices in Chula Vista and Oceanside.