April 7, 2024 | Article by Matt Clark Social Share
What is a wrongful death case under California law?
A wrongful death case can be maintained under California law if a person dies as a result of the negligent or intentional misconduct of another. The case can stem from a death caused by any type of misconduct including accidents, or murder.
Who can bring a wrongful death case?
California law designates certain survivors who are entitled to pursue a wrongful death case. If the decedent was married, the spouse at the time of death can bring a lawsuit. If the decedent also had children, the children can also bring a lawsuit. If the decedent has no surviving spouse or children, then the decedent’s parents are allowed to bring a lawsuit. Brothers and sisters are entitled to bring a wrongful death action if the decedent has no surviving spouse, children, or parents. If the decedent was not married, but had a domestic partner, the domestic partner can file suit. If a young child dies, the parents are entitled to bring a wrongful death action. The answer as to who exactly can bring a wrongful death action in any given case can be complex; therefore, anyone considering a wrongful death action should consult with a wrongful death lawsuit attorney.
What if my relative lives for a period of time after the incident and then dies?
This is called a “survival action.” Whether a person dies before or after a lawsuit is filed, their estate is entitled to bring a survival action. In a survival action, the estate is entitled to recover the economic losses incurred by the decedent as a result of the incident giving rise to the lawsuit but is not entitled to recover for the decedent’s pain, suffering, and emotional distress. The only exception to this rule is a case in which the estate can prove elder abuse in which case damages for pain, suffering, and emotional distress of the decedent.
When must a wrongful death action be brought?
A wrongful death action, under California law, must be brought within two years of the date of the decedent’s death, if death occurred on or after January 1, 2003; and one year from the date of the decedent’s death if the death occurred before January 1, 2003. In cases against public entities, a claim must be filed against the public entity within six months from the date of death.
What if one or more of the survivors who are entitled to bring a wrongful death case decide that they do not want to sue?
The law provides that all of the potential wrongful death claimants must be joined in one case. However, the law allows survivors who do not want to pursue the case to opt out of the case as long as there is an assurance to the potential defendants that they are giving up their rights.
What if the decedent was partially at fault for causing their death?
California is a comparative fault state. Therefore, even if the decedent was partially at fault in the incident, the survivors can still maintain an action against any other person or entity who was also at fault. However, the recovery of the survivors will be limited by the percentage of the decedent’s fault. Thus, if the survivors are awarded $2,000,000 but the decedent is found to be 50% at fault, the recovery will be limited to $1,000,000.
What economic damages are survivors entitled to in a wrongful death case?
The survivors are entitled to the value of future monetary contributions from the decedent and the value of any personal service, advice, or training that would have probably been given if the decedent had lived. This is determined by projecting the amount of money the decedent would have earned in the future but for their death and subtracting from that the amount that the decedent would have “consumed” on their expenses.
Are the survivors entitled to recover damages for their emotional distress?
Yes and no. Under California law, the heirs are entitled to recover compensation for loss of love, companionship, comfort, society, affection, solace, or moral support. However, they are not entitled to recover for grief and sorrow.
In a case with multiple survivors, how are damages divided?
If the case goes to trial, the jury awards one lump sum of damages to all survivors. The judge divides up the award based on a number of factors including the financial dependence of the survivor on the decedent and the closeness of the relationship between the heir and the decedent. If the case settles, then generally the survivors have to decide themselves how to divide the proceeds or they can seek the assistance of a mediator. It is sometimes wise for the survivors to determine amongst themselves how they will divide up the proceeds at the very beginning of the case so that problems do not arise later.
Do I need an attorney to pursue a wrongful death case?
In almost every wrongful death case, the potential plaintiffs should consult with an attorney. The law in this area is complex as to who is entitled to bring a case and who is entitled to a recovery, and will usually need to be sorted out by an attorney. Further, even in a case in which the decedent was killed by a person with a relatively low insurance policy limit, it is wise to seek the advice of an attorney because an investigation may reveal other potential defendants who are responsible for the death.
Can the survivors hire separate attorneys?
The individual survivors can retain separate attorneys, and that is sometimes necessary. However, even in this situation, the heirs should limit their internal hostility because it will ultimately drive down the entire value of the case.
