After the tragic and unexpected loss of a loved one, filing a wrongful death claim may be the last thing on your mind, but recovering compensation during this stressful time can help ease the financial burdens you and your family have struggled with, due to the untimely loss of a family member. When you file a wrongful death claim, you must work with an experienced personal injury lawyer, to increase your chances of receiving the compensation you and your family deserve. Additionally, an attorney will know the ins and outs of personal injury law and can handle every aspect of your case, so you and your family can heal and move on in peace.
What to Expect When You File for a Wrongful Death Lawsuit
When a loved one has passed away due to the negligent or intentional acts of someone else, you must take legal action. If you’ve decided to file a wrongful death claim, the first step is contacting an attorney who specializes in this area of the law to determine if you have a case and if you’re eligible to file a lawsuit.
In the state of California, the following family members can file a lawsuit:
- Spouse or domestic partner
- Grandchildren (if the decedent’s children are deceased)
- If the decedent did not have a spouse, domestic partner, children, or grandchildren, then an individual who is entitled to inherit from the deceased party under California law can file a lawsuit.
Additionally, an individual who was financially dependent on the deceased party may also be eligible to pursue a claim, including:
- Children of a putative spouse
- A minor who lived in the same household as the decedent and was financially dependent on the deceased party.
Meet with a Wrongful Death Attorney
When you can file a claim, you must prove that your loved one lost their life due to the negligent actions or inactions of another person and that this had a financial and emotional impact on you and your family.
When you meet with a personal injury attorney, you will go over how your loved one passed, potential damages, and insurance information. Once an attorney has this information, they can begin an investigation.
Case is Filed
After your attorney has gathered evidence and completed their investigation, the case will be drafted and submitted to the court. The responsible party will be notified once the claim is submitted and will either deny liability or offer a settlement.
If the at-fault party submits a settlement, your attorney will negotiate a fair settlement amount.
If the negligent party denies responsibility, the case will move to pretrial. During a trial, your attorney must convince a jury that the other party was responsible for the death of your loved one. A jury will determine if you should be compensated after they have listened to both sides’ arguments.
Types of Wrongful Death Lawsuits and Damages Explained
In the state of California, there are two types of wrongful death lawsuits:
Wrongful Death Claim
A wrongful death claim is filed by the eligible surviving family members of the decedent. The damages an eligible party is able to pursue focus on their experience, not the experience of the deceased party. The plaintiff in a wrongful death claim may be entitled to pursue damages, such as:
- Medical expenses
- Funeral costs
- Burial costs
- Loss of companionship
- Loss of benefits
- Loss of
- Loss of guidance
- Any financial support the deceased party would have contributed to their family
A survival action can be filed by the decedent’s estate or by their successor-in-interest if there is no estate. A survival action awards compensation for damages suffered by the decedent as the result of the defendant’s negligence. This often includes medical costs, property damage, and other damages that the decedent suffered from the time of the accident and until their time of death. Basically, a survival action is a personal injury claim for damages that the decedent could have made, had they survived. Unlike a wrongful death claim, a survival action awards damages based on the decedent’s experience.
A survival action can only be filed if the deceased party did not die instantly in an accident. If the decedent died instantly in an accident, their surviving family members are not entitled to seek compensation on behalf of the decedent’s experience, such as the pain and suffering the deceased party experienced due to the injuries they sustained in the accident. If the deceased party survived the accident and eventually succumbed to their injuries, the decedent’s estate or successor-in-interest can pursue compensation for the costs incurred, in addition to the pain and suffering the decedent experienced, during the period of time in which the accident victim lived with the injuries.
Changes to Pain and Suffering Damages for Survival Action Wrongful Death Lawsuits in the State of California
A new law in the state of California will allow the decedent’s surviving family members to recover damages for the deceased party’s pain and suffering, through a survival action wrongful death lawsuit.
Senate Bill 447
On October 1, 2021, Senate Bill 447 was signed into law. This law amends the California Code of Civil Procedure Section 377.34, concerning the damages allowed in survival action cases. Before the Bill, pain and suffering damages were barred from cases filed by a deceased party’s successor in interest or personal representative.
With the passing of 447, damages for pain and suffering are now permitted for wrongful death case survival actions as of January 1, 2022. This includes actions filed in a four-year window between January 1, 2022, to January 1, 2026, in addition to wrongful death cases prior to January 1, 2022, where trial preference was granted in accordance with Section 36 before January 1, 2022, and cases in which a successive wrongful death action is filed upon a plaintiff’s passing. While this new law has a sunset period, many believe that this law will become permanent.
Contact a Wrongful Death Attorney Today to Schedule an Initial Consultation
If you lost a loved one due to the negligent, reckless, or careless actions of another person or entity, you deserve justice. At Lem Garcia Law, we’re committed to getting our clients the compensation they deserve. You don’t have to go through this difficult time alone. At our firm, we offer free, no-obligation case strategy sessions. When we meet we can discuss your case and your legal rights and help you determine what your best legal option is. If you decide to work with us, we will begin an investigation right away and keep you informed on the progression of your case, every step of the way. Contact our law office today to schedule a free case strategy session and let the legal team at Lem Garcia Law help you pursue the compensation you and your family deserve for the tragic loss of your loved one.