A loss of a loved one in a fatal car accident is devastating. That’s why you need a serious injury lawyer. There is no other way to describe it. Evaluating moving forward with a claim for the loss of your loved one after a fatal car accident is a huge undertaking. Here is our guide to fatal car accidents.
Our meetings start in the conference room. No one enters willingly. It is shocking to be in a law office for the death of a family member you never anticipating dying in a fatal car accident. They never intended to die this way. Someone stole so much from you. You are uncomfortable, unhappy with the circumstances, and maybe even mad. Maybe angry. You are here to talk about the fatal accident that took your loved one’s life. A senseless act by a negligent driver.
Everyone’s story is slightly different. It may be a mother or father, a son or daughter, but they were all victims of the carelessness and negligence of another driver. And now the family wants answers. We provide answers to what to expect next, the hurdles that may need to be climbed, who needs to be contacted, and what information may be obtained. Below is what is discussed in these meetings.
When you lose a child, spouse, or parent in a fatal car accident, the laws surrounding this tragedy are the wrongful death laws.
The claim you assert against the at-fault driver is a wrongful death action. Such a case happens only if the deceased would have been able to sue for personal injury themselves. In spite of that fact, a wrongful death claim is not a claim for your victim, but instead seeks to help you and your family recover what you have lost due to the unfortunate passing in a fatal crash.
The claim at its most basic is a civil action saying that someone else is responsible for the death of your loved one, and that that death harms you emotionally and financially. Proof of your harm entitles you to a remedy because of that person’s actions. Your “remedy” is financial in nature. Your claim for this remedy is brought in a civil court. The criminal court will deal with the individual who caused the fatal car accident.
A civil action differs from a criminal one in key ways. The civil suit alleges harm to you and/or your property. In this instance, it is the claim of the loss of a loved one as a result of the fatal car accident. It’s a private action brought by you as an individual against another person or entity (government, corporation, etc.). You are seeking redress for that harm. A criminal action, on the other hand, is brought by the state against that same entity. As such, whether the person whose actions robbed you of your loved one is being prosecuted criminally or not, you and your loved ones may stand to recover a financial amount that seeks to approximate the enormity of your loss.
Traditionally, dating back to 17th and 18th century English common law, claims for torts (personal injuries to person and/or property) perished along with the holder of the claim. This left those families who had lost a loved one in the position of having no legal recourse. As an aside, this still remains the case with many of the laws on Tribal Lands in Arizona.
In the late 1800s, American jurisdictions began rectifying this injustice by allowing the families and estates of the deceased (also known as the decedent) to bring a suit for their losses. For a time, the national standard permitted only the personal representative of the estate to file the claim. The award was then passed through the estate to the decedent’s heirs.
Arizona’s wrongful death statutes originally followed this trend. They were amended in the 1950s to allow the personal representative of the surviving children or parents to bring the suit along with the personal representative of the estate (if no surviving beneficiaries existed). This is more or less the form that the law takes even today. In 2000, the law was amended once more to allow beneficiaries to bring the suit themselves rather than a personal representative.
The passing of a loved one in an accident is often a sudden, unexpected tragedy. While no amount of monetary payment can truly make up for the loss of a parent, spouse, or child, the state of Arizona, like other states, permits bereaved family members to recover for the death of a loved one. These “wrongful death” statutes entitle the loved ones of those taken from us, due to neglect or lack of care or deliberate actions of another, to some financial recompense for their loss.
Arizona Revised Statute 12-611 creates a cause of action for wrongful death. The statute imposes liability on negligent actors including, under some conditions, the corporations said actors work for. The key language of the statute is that if the wrongful act, neglect, or default is the reason of the death, a suit for wrongful death can be the reason if that act allows the victim to recover. For example, a man who is in a car accident and has injuries may be entitled to sue the person responsible for the accident. If instead, the man died as a result of the accident, a wrongful death lawsuit will file against that same individuals or entities by the man’s spouse, parents, or children.
The statute also permits the commencement of a wrongful death suit even if the death was a criminal act of murder or manslaughter. What this means is that if the driver is having alcohol, and had multiple DUIs and still chose to drive, he or she will be charged with murder or manslaughter for the fatal car accident.
A wrongful death suit would not be part of the criminal proceedings. Instead, wrongful death is a private, civil cause of action from the side of the victim’s family. Notably, the burden of proof is less severe in a wrongful death case, so it may win even if the criminal case is unsuccessful.
A wrongful death suit most often happens in the case of a work or automobile accident caused by negligence. Negligence occurs when someone fails to act like most others would, and that failure causes harm to another person. When that harm results in a loss of life, the deceaseds’ parents, spouse, and children are permitted to recover for that negligence for their bereavement. Where none of these exist, the estate of the deceased may bring the lawsuit.
The damages in a wrongful death claim are based on the individual injuries you and your loved ones (if statutory beneficiaries) suffered as a result of the death. Thus, if an award is paid, it will be a single verdict that contains particularized awards for each beneficiary.
There are two types of damages, generally, that you may be entitled to in your wrongful death suit. The first are the damages that are inflicted directly as a result of the accident and the fallout from it. Medical and funeral expenses, property damage, the value of lost wages (from the time of the death and future earnings had your loved one lived), and services he or she provided. If your loved one lingered before passing, the pain and suffering he or she endured before death may also be calculated as part of the damages. Such damages are generally paid to the estate of the deceased.
Medical and funeral expenses of the deceased are recoverable by a surviving beneficiary only if he or she has paid for these expenses or is liable to pay for them. Otherwise, such expenses are generally recoverable only in a decedent’s action for personal injury which survives the decedent’s death under the survival statute. Lankford and Blaze, id. See also A.R.S. 14477. The rationale behind this rule is that a wrongful death action is an action to recover for the surviving beneficiaries’ damages and not those of the decedent.
Economic support and services include everything your deceased loved one contributed to you, his or her parents, and his or her children. This includes past and future damages dating from the time of the unfortunate passing. Unlike in personal injury cases, the measure of damages is not future earnings but the loss of economic support you would have received.
These economic damages are typically calculated by an expert that your attorney will hire to examine your loved one’s work history and expenses. The work history will be extrapolated into what earnings he or she likely would have received had the loss of life not taken place and is then offset by how much of those earnings he or she would have personally consumed.
Future earnings are usually based on your deceased’s relatives, prior earnings, education, life expectancy, and an economic analysis. In calculating lost earnings, the expert will need information from you about your loved one’s work life. His or her yearend pay stubs for the past few years, W2s, and income tax returns will help establish hours worked and base salary. Union contracts and your lost relative’s employer’s pay history will help determine what promotions and raises he or she likely would have received. Also pertinent are the fringe benefits and retirement plans he or she has and would have likely received had the worst not occurred.
The value of services provided is calculated in a similar respect. You will need to provide an exhaustive list of services that your loved one provided to you and your family in the home. The expert your attorney hires may have a questionnaire to help you in this respect.
Because this is a calculation of the economic benefits your loved one rendered to you and your family, his or her future earnings are offset by how much of them would have been personally consumed. This gives us an amount for what would have been contributed to the family. To calculate the consumption offset, the expert will need household spending records and the earning history of his or her spouse.
You and your loved ones may also be entitled to recover for the lost value of an inheritance property that your deceased loved one probably would have inherited had he not died and that you would have thus enjoyed the use of.
The jury is also permitted to take into account your and his or her habits, alternative occupations, intelligence, lifestyle choices, age, and life expectancy. Thus, information showing the race, gender, date of birth for you, your family, and the deceased will need to be provided.
The second category of damages pertains to the losses you and your family have personally sustained due to the death of your family member. Such damages are payable directly to family members after the court has determined the amount and split of the damage award. Such damages include the loss of care and companionship of children, spouses, and parents. The loss of consortium (physical and emotional intimacy) by the spouse. The loss of guidance for your loved one’s children. The damages also seek to compensate you for the pain and suffering caused by the unexpected death of your loved one. The loss of household services should also be calculated to a dollar amount based on hours worked.
If you are the spouse or child of your lost loved one, you may recover damages that attempt to approximate the loss of love, affection, intimacy, guidance, and comfort you got from your relationship with the victim. While this is impossible to truly quantify, the jury will use its best judgment to consider the entirety of the situation, as well as the relationship you and your family had with your departed family member.
Because of the nature of attempting to quantify relationships down to a dollar amount, this may be the most difficult part of the trial for you. You and your family may be called to testify, and the defendant’s attorney will most likely attempt to cast doubt on your relationship with your deceased loved one. The reasoning behind this, for the defense, is that juries are permitted to reduce the damages if the defense counsel can prove that there was no real loss. Thus, a poor relationship with a loved one can reduce the recovery. This is most commonly seen in cases where there was abuse in the relationship. When the deceased is a child, parents found guilty of child abuse are not permitted to recover at all.
Loss of consortium damages is specifically for the harm coming from the loss of the loved one, not from witnessing the death or the negligent act, which are separate causes of action (negligent and intentional infliction of emotional distress). However, if the circumstances of the death are relevant to your or another beneficiary’s suffering, they may be admissible. Your relationship, and your loved one’s relationships with his or her family, will thus be under a microscope if your case goes to trial. Your lawyer will prepare you for this and help you and your family get through the ordeal.
In many ways, questions regarding the grief, sorrow, stress, and mental anguish you and your family suffered after your loved one’s death will be similar to those regarding the losses of companionship and society. Grief, however, attempts to put a dollar amount to the emotional harm you and your family suffered after your loss and will continue to suffer. This is usually shown through the testimony of friends and family of the beneficiaries (cousins, siblings, grandparents, etc. cannot recover, but they may testify regarding observations). Proof of psychiatric care and medicine prescriptions are also helpful in showing grief.
In personal injury and wrongful death cases, most damages are compensatory, i.e. meant to restore you, as closely as possible, to the state you would have been at had the wrongful act not caused you injury. The damages listed above are all compensatory damages. The award for past and future economic support, for example, seeks to redress the loss you will sustain from that lack of income and services that your deceased loved one would have provided. Likewise, loss of consortium damages seeks to quantify the love and care you would have received and restored those to you.
Punitive damages, on the other hand, are about the wrongdoer. The goal of punitive damages is to punish the defendant for alleged actions, omissions, or a course of conduct. The purpose of laws establishing punitive damages is deterrence. Specific deterrence seeks to keep the individual offender from performing the same type of act that led to the harm, while general deterrence seeks to send a message to others that that sort of behavior is best avoided. Punitive damages accomplish both.
They award punitive damages for several types of conduct:
Generally, most personal injury suits (and the wrongful death suits that stem from them) are caused by acts considered to be ordinary negligence. Ordinary negligence is merely showing a lack of care. A moment of inattentiveness while driving or a spill on the floor that leads to an injury. However, where the defendant acts with an “evil mind,” as he or she does in the acts, they may impose punitive damages.
To show such motives, your attorney may present circumstantial evidence. From such evidence, the jury can infer that it’s more likely than not that the defendant acted with reckless or malicious intent. Words, actions, and general reckless disregard can be sufficient to show intent and that punitive damages should be awarded.
A.R.S. 12-613 permits juries in wrongful death suits to take into account any mitigating or aggravating circumstances attending the wrongful act when they are deliberating over damages. This allows the jury to, using its discretion, increase or decrease the award based on its judgment of the factors specific to your case. If the defendant acted in a particularly careless or selfish manner that caused the death of your loved one, your attorney may ask the jury to impose punitive damages (without needing to prove an evil mind standard). An example is when a driver has a history of reckless driving behavior. Likewise, if an accident occurred despite the best efforts of the defendant, the jury may show leniency in its award.
In order to settle, all other beneficiaries must consent to the agreement. Because of this, you and your attorney have a duty to attempt to contact all potential beneficiaries, which can become difficult when it comes to children of prior marriages or distant parents. If they fail to do so, the other beneficiaries may later ask the court to undo the settlement. If your loved one left behind a minor child, the probate court or a guardian ad litem appointed by the probate court must approve the settlement.
In some circumstances, you may be barred from recovering for the wrongful death of your loved one. These bars usually come in the form of not being a statutorily defined plaintiff. (e.g., you are a cousin, sibling, or grandparents of the deceased). Alternatively, the Arizona legislature has barred recovery for those who have been held criminally responsible for harm to or the death of the deceased. A.R.S. 12-612 prevents those who have been found guilty, pled guilty, pled no contest to, or found guilty except insane to four other laws: A.R.S. 13-3623, 13-1103, 13-1104, and 13-1105.
A.R.S. 13-3623 is the statute defining child (and vulnerable adult) physical and emotional abuse. If the victim is a child, any beneficiary who is guilty (or otherwise pled guilty or no contest) to such a charge will not be able to recover for the wrongful death of the child. Thus, if you have an abusive former spouse, he or she cannot recover if he has been convicted under 13-3623.
A.R.S. 13-1103 through 1105 are the statutes criminalizing manslaughter, second-degree murder, and first-degree murder. In certain situations, a person may seek to recover for the wrongful death of a loved one despite having been convicted of manslaughter (which can be caused recklessly, such as by drunk driving). This statute permits recovery in such circumstances, though other statutory beneficiary’s rights are not affected.
The common law legal doctrine of respondeat superior allows entities, such as corporations, to be held responsible for the actions of their employees and agents. This is done to allow you, as the injured party, a better chance of recovering your damages. It also creates an incentive for employers to operate in the safest way possible.
To hold the employer responsible for the actions of the employee, the employee must be authorized to act on the employer’s behalf. The employer must control the time, place, and method of the work being done. The actions that led to the incident and your loved one’s death must have been while the employee was acting within the normal scope of his or her duties as an employee. Determining when the employee is acting within that scope is often the difficult question for juries. An employer cannot disclaim responsibility simply because the employee did something that he or she was not explicitly ordered to do. The employer bears responsibility even for intentional harms that include furtherance of the employer’s purposes.
Some entities, called common carriers, have a higher duty of care than other individuals or businesses. Airlines, buses, trains, hospitals, and hotels owe a higher duty of care and protection, and if an employee of one of these caused your loved one’s accident, the employer is much more likely to be responsible. Even if that is not the case, your attorney may attempt to show that the defendant employer was responsible for the actions of the defendant employee.
Who is permitted to bring the wrongful death suit to court varies from state to state. Arizona Revised Statute 12-612(A) determines who may bring a suit. To file such a suit, you must be either the surviving parent or guardian, spouse (including same sex), or child of your lost loved one. Unfortunately, siblings, cousins, grandparents, and other family members may not bring this type of lawsuit. Common law spouses and other partners are also excluded from the scope of the statute. For children who have lost a parent, the child’s legal guardian may file the suit on the child’s behalf. The legally adopted children cannot bring a wrongful death suit on behalf of their biological parents, as adoptions extinguish the legal parent-child relationship between them.
The law permits only certain family members of the deceased to bring such a suit:
If there is a question of familial relationship, the burden will be on you and your attorney, as plaintiffs, to establish it. This is possible with the help of any admissible evidence under Arizona’s evidence rules. DNA testing is not so important.
It is important for you and your family to determine who will bring the case to court. 12-612(B) & (C) say that only one of those among the family members permitted to bring the suit may do so. A parent may also maintain an action for the wrongful death of a viable, unborn child. Other potential beneficiaries may, however, join the suit with their own attorney to help ensure that the court secures their interests.
it is not necessary to be named as a plaintiff in order to be a beneficiary and request damages. Prior cases show that wrongful death claims for all potential beneficiaries will be consolidated into a single action. The plaintiff in that single suit represents every beneficiary who has a right to compensation. Whoever among your family brings the case must act in good faith and distribute the jury award or settlement amongst the other beneficiaries. That amount, according to A.R.S. sec. 12-612(C), is split in proportion to the damages each individual sustained.
You, as the plaintiff, have a fiduciary duty to the other statutory beneficiaries in both conducting the trial or reaching a settlement and distributing the award according to the settlement of the jury’s verdict. This means you have to give notice to all beneficiaries of a probable settlement and get their consent to it. Failing to do so can see your settlement thrown out. That duty will also extend to your lawyer. Your counsel must represent the best interests of all beneficiaries unless they’ve stated that they do not wish to assert a claim or participate.
Lastly, A.R.S. Sec. 12-612(D) forbids recovery for parents who are guilty of child abuse. Similarly, those who are guilty or plead no contest to manslaughter and first- or second-degree murder of the victim’s family member can be barred from recovering wrongful death benefits. As in estate law, the family member in these cases is treated as if they had pre-deceased the lost loved one.
If no statutory beneficiary (spouse, child, or parent) survives your loved one, the estate claims for a wrongful death. The estate is represented by a personal representative chosen by your deceased loved one’s will and trust documents or by the probate court itself where no will exists or no executor is named. The decedent’s estate stands precisely in the shoes of the decedent, and the damages are calculated based on the loss to the decedent and his estate.
A.R.S. 12-613 broadly details the damages available for recovery to remedy a wrongful death:
In an action for wrongful death, the jury shall give such damages as it deems fair and just[emphasis added] with reference to the injury resulting from the death to the surviving parties who may be entitled to recover. The estate, by way of its personal representative, is a surviving party according to the statute.
A.R.S. 12-613 does not contain any language limiting the types of damages available for recovery by an estate. Instead, the measure of damages does deem fair and just.
There are important distinctions to keep in mind when the wrongful death suit occurs on behalf of the estate instead of other statutory beneficiaries. Firstly, the estate cannot recover for loss of society damages. This is because the loss of society damages, such as consortium, is available to remedy the losses that loved ones of the deceased incurred when he or she died. Secondly, the estate gets money for the damages and this money is subject to your victim.
If your loved one owed debts, they can be paid from the jury award in his or her wrongful death suit. Damages awarded to you and your loved ones for loss of consortium with your deceased family members and for medical and funeral expenses cannot be reached by your departed loved one’s creditors. This is consistent with the policy that a wrongful death suit is for your damages rather than the losses of your departed loved one. Usually, creditors, especially medical care facilities that cared for your loved one before his death, may attach a lien to a personal injury award. However, they may not do so with the awards won by wrongful death beneficiaries.
You and other beneficiaries cannot recover from uninsured or underinsured motorist benefits (if applicable) from your loved one’s insurance policy unless you yourself get benefits from the policy. Absent any beneficiaries, on the other hand, the estate may bring a claim against the insurance agency for whatever benefits would have accrued to your lost loved one.
Awards from a wrongful death suit are usually not taxable income. Punitive damages are a taxable exception, which follows with the idea that punitive damages mean to punish the wrongdoer rather than reward you and your loved ones.
You should also keep in mind that any amount awarded to the estate of your lost loved one will pass on in the same manner as any other inheritance. Thus, that amount will pass along in accordance with the will of your victim. If there is no will, the laws of intestacy (lacking a testament) will control and determine how the inheritance is distributed.
Arizona’s wrongful death statutes (A.R.S. Sec. 12-611, et seq.) permit the decedent’s estate recovery of the decedent’s lost future earnings. Evidence of a decedent’s capacity and disposition to earn money is pertinent to the issue of damages in a wrongful death action. Statutory beneficiaries may only recover the past and future economic support. As noted above, this is the benefit you can receive from your loved one’s future earnings and services minus his or her own consumption and use thereof. The estate, however, recovers future earnings in their entirety. The Arizona Court of Appeals has endorsed the use of a decedent’s earning capacity in ascertaining the damages available to the estate.
While a wrongful death suit can only occur only if your loved one were able to bring a personal injury suit had he or she survived, this does not preclude the simultaneous existence of personal injury and wrongful death claims. In the event that your loved one brought a personal injury suit against the defendant before succumbing to his or her injuries, that suit survives his or her death. This is permitted by Arizona’s so-called survivor statute, A.R.S. 14-3110, which allows most claims, including personal injury claims, to survive the death of the plaintiff or defendant. The claim continues on by the personal representatives of the estate. Damages in the personal injury suit for pain and suffering do not survive your lost loved one’s death.
Upon your unfortunate loss, you or other surviving beneficiaries(or your personal representatives) may bring the potential wrongful death suit. These are distinct causes of action:
However, the defendant in each suit is equally liable, and that liability is, for the most part, established in identical ways. Thus, the two cases will mirror one another to a large extent. In the personal injury suit, you may be asked to testify regarding the pain and suffering of your victim. Whereas in a wrongful death suit, you may be asked to speak before the jury on your own sorrow and that of other loved ones.
Generally, a wrongful death claim will follow a similar path as a personal injury suit for negligence. Thus, your attorney will seek to show that the defendant(s) were negligent by proving that there was a duty, a breach of said duty, and that that breach caused the injury. Duty refers to a duty of care that the defendant was expected to show in performing or omitting an act (such as driving). Breach of that duty is just what it says. It is all about failing to perform that act with the requisite care (e.g., causing an automobile accident due to inattention).
In personal injury claims, an attorney would also need to show damages. In such an action, there is no liability without monetary damages. However, in a wrongful death suit, the jury’s broad latitude allows it to find liability and still award no damages. Such a ruling, though, if clearly out of line with the evidence, may overturn on appeal.
Arizona is a comparative fault state, meaning that in a tort action, such as for a wrongful death, the fault will apportion all the individuals and entities took part in an action. Once they consider the fault, the damages are attributed according to a fault. For instance, if an employee defendant had 10% at fault and his employer had 90% at fault, the damages owed is split between them 10-90.
The statute of limitations, codified in A.R.S. 12-542, the law barring old claims from being brought to court, allows most fatal car accident claims or wrongful death cases to be brought within two years from the date of the death. This is important because the untimely death may not occur for some time after the tortious action, even years later. In Frongillo v. Grimett, for example, a spouse’s wrongful death claim was brought within two years of her husband’s death. But eight years after, the tortious conduct causing harm was held to be within the statutory time limit.
In cases of workers’ compensation or where the negligent actor was a government entity, you have only one year to file the lawsuit. While a lawsuit is likely the last thing on your mind in the wake of the death of a loved one, it is important that you take steps to document and file your case as soon as possible. After the deadline has passed, the court will simply refuse to hear your case, regardless of most contingent circumstances.
Somewhat distinctive to wrongful death cases is the exceedingly broad latitude that jury settles. A.R.S. 12-613 gives juries extremely wide discretion to consider all manner of evidence and acts to determine what damages are fair and just. Moreover, the jury can consider any mitigating or aggravating circumstances in its determination of a fair and just reward. This can include the behavior of you and other beneficiaries, such as when an abusive spouse is denied any damages whatsoever as well as punitive damages.
The jury can consider the character of the deceased as well as the relationship with the beneficiaries. The jury should consider how he or she spent money, age, gender, life expectancy, and other factors. This is notable since the defendant’s attorney may attempt to cast doubt on the quality of your relationship with your deceased loved one. In Arizona, the currently recommended jury instructions list the elements of damages that can be recovered in a wrongful death action. A jury may award an amount to compensate a plaintiff and the decedent’s beneficiaries for the following:
The loss of a loved one is never easy. It is even more difficult when they leave us unexpectedly. The court and wrongful death laws exist to, in some measure, ease the suffering from that incalculable loss. While a court case may be the last thing on your mind, it is important that you take steps to preserve your case so that you do not add a financial hardship onto the emotional loss. Contacting a skilled, experienced attorney can mitigate that burden as she will walk you through the steps you need to take to settle unfortunately necessary legal aspects of this tragedy.
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