Who Can File a Wrongful Death Claim?

Coming to terms with the death of a loved one is difficult in any circumstances. However, emotions can be especially raw when the loss is because of a wrongful death.

If you feel the loss of a loved one was due to negligence, you could be entitled to file a wrongful death claim against the party involved.

When thinking about taking legal action, you’re likely to have a number of questions surrounding your potential claim, here are some of the most common.

What is a wrongful death?

The law defines a wrongful death as the death of a human being as the result of a wrongful act of another person.

Wrongful deaths take many forms, including:

• Nursing home abuse
• Drunk driving
• Physical Assault
• Medical negligence

Understanding a wrongful death suit

A wrongful death suit is an action taken by the families of a deceased person against the person or business they believe is liable for their death.

It can also be made by the estate of the deceased if there are no surviving relatives.

A judge or jury will then rule on the settlement.

Wrongful death suits are a civil action, not a criminal one. This means that if the suit is successful, they may award the plaintiff monetary damages.

However, the defendant will not face a jail sentence because it’s a civil case and not a criminal one.

However, a successful civil suit doesn’t mean that the defendant won’t face other charges in a criminal court, and civil and criminal suits can run at the same time.

Who can file a wrongful death claim in Arizona?

Each state has different rules, but in Arizona under statues 12-611 – 12-613 the following people can make a wrongful death claim:

• Spouse
• Child
• A legal or personal representative
• Parents
• Guardian
• Estate

Are there limitations on who can file a wrongful death suit?

Yes, not all relations can file a wrongful death suit.

Arizona Laws prevent the following relatives from making a wrongful death claim:

• Siblings (sisters and brothers)
• Non-married spouses
• Other more distant relatives

When is a wrongful death case appropriate?

This is set out in law under Arizona statute 12-611. The statute states:

“When death of a person is caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action to recover damages in respect thereof”.

How do personal injury claims and wrongful death claims differ?

A personal injury claim is an action that an individual would have taken if they had survived their injuries and where it’s possible to attribute their injuries to the negligent actions of another party.

A wrongful death claim is a negligence claim pursued by surviving family members.

How do I prove a wrongful death?

As a wrongful death claim is a form of negligence, you would need to show that the defendant was negligent.

Negligence can take many forms such as a person driving too fast, or drinking before they get behind the wheel. Another example is a construction site boss that doesn’t put in adequate safety measures, leaving workers vulnerable to falls.

Negligence has four basic tiers, all of which have to be met. These are:

1. That the defendant had a duty of care.
2. They failed in that duty of care
3. The person died because of the breach in care
4. The family has suffered losses a judge or jury can compensate them for.

Every nursing home has a duty of care to its patients.

However, establishing that the defendant failed in their duty of care is where claims become more complex.

When a lawyer can prove all these tiers to a judge or jury’s satisfaction, it entitles the plaintiff to receive damages.

Does every wrongful death case go to trial?

No, many wrongful death cases end well before they reach this stage.

When you file a lawsuit there is always a chance that you may have to go to trial, but before this, there will be the opportunity for meditation and arbitration.

• Arbitration aims to resolve the case out of court with the assistance of an individual or team of arbitrators.
• Mediation involves an independent mediator. They are called in to encourage the two sides to reach agreement instead of taking the case to court.

There are several benefits to these processes. They can allow you to avoid the stress of a trial, and it may be possible to settle them sooner.

If you cannot settle during the mediation or /arbitration stage, then the case will go to court.

However, if you refuse a settlement during this stage, there is a risk that they’ll award you less at the end of the court case, or your case will lose at court.

A lawyer can advise you on the best approach to take during this phase.

What is a survival action?

Unfortunately, some people who file a personal injury claim don’t always get to see it through to the end of the trial.

If the original person who filed the claim passes away, an estate representative can take over the claim. They call this a survival action. This action would be brought by the executor of the estate, rather than surviving family members, If the case is successful, a judge or jury will award damages to the deceased estate.

What Is the statute of limitations for a wrongful death claim?

There is a legal time limit for making a claim called the Statute of Limitations.

In Arizona, they set this at two years from the date of death. However, it’s usually advised that you start your claim at an early stage while evidence is more readily available and you are still clear on the facts of the case.

In addition, preparing a case and gathering evidence, witness statements, and any other details needed to create a robust case can be time consuming. For these reasons, you should come forward as soon as possible if you think you have cause to file a wrongful death case.

You can find out more about how the Statute of Limitations applies to cases like these by reading our guide.

What losses can a wrongful death claim compensate for?

In a successful case, damages cover costs such as:

• Funeral expenses
• Financial losses
• Loss of companionship and guidance
• Emotional distress

The law classes these losses as economic or non-economic.

• Non-economic: These damages consider the emotional distress, loss of consortium and other non-financial elements.
• Economic: these losses compensation the family for any financial losses, like income, pensions etc.

In some cases, a judge/jury may also apply punitive or exemplary damages.

The Legal Dictionary defines punitive damages as:

Monetary compensation awarded to an injured party that goes beyond that which is necessary to compensate the individual for losses and that is intended to punish the wrongdoer.

Under standards for punitive damages set out in Arizona statute, the plaintiff would need to show that the defendant acted willfully and out of malice.

Because of this many cases of wrongful death do not qualify for damages, and it’s rare for a judge to award them as the bar so high.

What level of damages will a judge award?

A lawyer cannot provide you with an exact valuation as there will be many variables in individual cases. However, when calculating compensation, an evaluation will consider many factors regarding the deceased including:

• Age
• Health
• Income

How long will a case take to settle?

This varies, but it’s often a lengthy procedure. A typical case can last up to 18 months.

However, some cases can take much longer, sometimes running into years.

The potential length of cases shouldn’t deter you from pursuing your right to justice and as detailed previously, arbitration and meditation may reduce the time it takes to reach a settlement.

Will I inherit the deceased debts?

No, under Arizona’s Wrongful Death Act, plaintiffs do not have to pay for the deceased debts or liabilities out of their damages.

Who covers the costs of a lawsuit?

An insurance policy may cover wrongful death claims. For instance, if the wrongful death occurred because of the negligence of a company, such as a nursing home, they would turn to their insurance company to pay the settlement.

Individuals without an insurance policy would have to cover the damages.

Do I have to pay taxes on a settlement?

No. The IRS categorizes wrongful death payments in the same way as personal injury payments. As they are compensatory, there are no taxes due.

However, there are some additional damages that you should include on your tax return as extra income. These include:

• Punitive damages
• Damages for emotional distress
• Lost income

You can find out more about how taxes relate to nursing home abuse cases here.

What does a wrongful death case involve?

Wrongful death cases begin with some basic steps:

Evaluation

A lawyer will evaluate your case and use their expertise to decide the chances of success. This phase involves listening to the events that led up to the wrongful death.

Investigation

When a lawyer takes a case, they will begin with an investigation. This part involves the gathering of any evidence. A lawyer will request evidence such as:

•         medical records,
•         nursing home records such as care plans
•         witness statements

Notification

A lawyer will notify the defendant you intend to take legal action.

What is the first step I should take?

Contact a lawyer.

They can assess your case and its likelihood of success. They can then talk you through your legal options. If you proceed with a wrongful death claim, the lawyer will then gather the evidence they need to build a case against the defendant.

Speak to a Lawyer

Wrongful death claims are complex and lengthy and they need the expert guidance of a lawyer who can explain the options and which path is best suited to you.

They can also be at your side throughout the case and use their expertise to help you get the best possible settlement.

If you are seeking justice for a wrongful death, you don’t have to feel like you are on your own. To find out more, contact The Thompson Law Firm today.