1. What is a wrongful death case?
Answer: A wrongful death case is a lawsuit in which it is asserted that one person intentionally, recklessly or negligently caused the death of another person.
Wrongful death cases can arise because of automobile wrecks, truck wrecks, bus wrecks, medical errors, pharmacist errors, fall injuries, construction accidents, and a large number of other situations.
2. Who has the right to file a wrongful death lawsuit?
Answer: Generally speaking, these are the rules for who may file a wrongful death lawsuit inTennessee:
- A lawsuit for the death of a husband can be filed by his wife, his executor or the administrator of his estate.
- A lawsuit for the death of a wife can be filed by her husband, her executor, or the administrator of her estate.
- If a person is single at the time of his or her death, the lawsuit can be maintained by his or her adult children or, if there are no adult children, by his or her parents. The lawsuit can also be filed by an executor or administrator.
- If a person is a single minor at the time of death, the lawsuit can be maintained by his or her parents. If the parents are divorced, special rules apply. The lawsuit can also be filed by an administrator.
- If the decedent did not leave a spouse or child and was predeceased by his or her parents, the law permits a sibling to file suit. The lawsuit can also be filed by an executor or administrator.
- There are exceptions to these general rules. An experienced wrongful death lawyer can explain whether an exception is applicable if he or she is advised of the nature of the family situation.
3. What deadlines apply to filing a wrongful death lawsuit?
Answer: You should assume that a lawsuit should be filed against the responsible parties within one year of the date of the injury that later resulted in death. If death was instantaneous, you should file suit within one year of the death. If there was a delay of one year or more between the date of the injury and the date of the death, you should file a personal injury lawsuit before the one-year anniversary of the personal injury and amend the lawsuit after the death to include a wrongful death claim.
There are several circumstances under which more or less time may be available. We recommend that you contact us as quickly as reasonably possible after an injury to determine what legal rights you have, including a determination of when legal action must be taken. Do not assume that you still have time to bring a case, or that the time has run to bring a case, unless you have received advice from a competent lawyer who has been informed of all of the relevant facts.
4. What damages may be recovered in a successful wrongful death lawsuit?
Answer: These are the types of damages that can be recovered: (a) medical expenses; (b) funeral bills; (c) conscious pain and suffering from the date of the injury until the date of death; (d) loss of enjoyment of life between the date of injury and death; (e) loss of earning capacity between the date of injury and death; and (f) the pecuniary value of life.
In all cases, the pecuniary value of life includes the present value of the decedent’s lost future earning capacity less those living expenses necessary to maintain the decedent’s person so that they can work. In cases involving the death of a spouse, the surviving spouse can recover damages for the loss of consortium of the decedent. In cases involving the death of a parent, the children can recover damages for the loss of love, society, affection and guidance of the parent. In cases involving the death of a child, the parents can recover damages for the loss of love, society and affection of their child. Each of these types of damages are included in the definition of the “pecuniary value of life.”
5. Who receives the damages recovered in a successful wrongful death lawsuit in Tennessee?
Answer: Generally speaking, damages for the personal injury claim (the claim that arises from the period of time between the injury and the death) are distributed under the will of the decedent and, if there is no will, under the law of intestate succession.
Funeral expenses are re-paid to the person who paid the funeral bills.
Medical expense monies generally must re-paid to the person or insurance company (or government entity) that paid the medical bills.
Damages awarded for the wrongful death portion of the award are generally divided between the “beneficiaries” under the law of intestate succession. For example, in a lawsuit where the decedent leaves a wife and two children behind, each of the three are “beneficiaries” under the law and each receives one-third of the pecuniary loss.
If the decedent left a wife and three children, the wife would receive 1/3 of the recovery and each child would receive an equal share of the remaining two-thirds.
If the decedent left no spouse and four children, each child would receive an equal share. If the decedent left no spouse and no children, the decedent’s parents would each receive 50% of the money.
If the decedent left no parents, spouse or children, the decedent’s siblings would split the money equally.
There are several exceptions to these general rules. For example, a parent that refused to support a minor child may lose rights to collect money if the child becomes a wrongful death victim. Likewise, a person who murders another person cannot be a wrongful death beneficiary. An experienced lawyer can help you understand the rules of distribution of wrongful death proceeds.
6. What do I do if a family member has lost his or her life because of another person’s error?
Answer: You should contact a lawyer as soon as possible. It is important that evidence be gathered to determine the validity of the claim. The insurance company for the person or company that caused the death will be working hard to gather that evidence, and you should have a lawyer doing the same.
© 2010, Law Offices of John Day P.C.