Wrongful and Accidental Death FAQ's
What is wrongful death in California?
Wrongful death in California refers to a legal claim that arises when a person's death is caused by the negligence, recklessness, or intentional misconduct of another party. It allows surviving family members or the estate to seek compensation for the losses suffered as a result of the death.
What is the purpose of a wrongful death lawsuit?
While never an easy task, the main purpose of a wrongful death lawsuit is to hold the responsible parties financially accountable for their actions. In most cases, the responsible party is forced to compensate the victim’s family for their loss. However, another important purpose in every wrongful death case that we handle is to force the responsible party to alter their behavior so that no other family has to suffer in the same way.
Who can bring a wrongful death action in California?
In California, Code of Civil Procedure 337.60 limits certain people who can file a wrongful death lawsuit on behalf of the decedent. The statute specifically allows the following parties to bring a wrongful death claim:
the deceased person's surviving spouse
the deceased person's domestic partner
the deceased person' s surviving children
if there is no surviving person in the deceased person's line of descent, then a wrongful death lawsuit may be brought by anyone "who would be entitled to the property of the decedent by intestate succession"; that can include the deceased person's parents, or the deceased person's siblings, depending on who is living at the time of the deceased person's death.
Additionally, individuals who were financially dependent on the deceased person, can also bring a wrongful death lawsuit in California:
the deceased person's "putative spouse", that is, someone who lived with the deceased and considered a "spouse" even though there is no legal contact
the children of the putative spouse
the deceased person's stepchildren, and
the deceased person's parents.
What is the statute of limitations for a California wrongful death claim?
In California, the statute of limitations for filing a wrongful death claim is generally two years from the date of the deceased person's death. This means that the lawsuit must be filed within two years to preserve the right to seek compensation for the wrongful death.
It's crucial to adhere to the statute of limitations because failure to file the lawsuit within the specified time frame may result in the court dismissing the case, and the opportunity to pursue a claim may be lost.
However, there are some exceptions and variations to the two-year statute of limitations. For example:
Discovery Rule: If the cause of death is not immediately apparent or if the wrongful act or negligence is discovered after the two-year period, the statute of limitations may be extended. In such cases, the clock starts ticking from the date the cause of death was discovered or reasonably should have been discovered.
Government Claims: If the wrongful death claim is against a government entity or employee, there are specific rules and procedures that must be followed. Generally, a written claim must be filed within six months of the date of death before a lawsuit can be pursued.
It's important to consult with an experienced wrongful death attorney to understand the specific deadlines and exceptions that may apply to your case. They can provide personalized guidance based on the circumstances surrounding the wrongful death and ensure that your claim is filed within the appropriate time limits.
What are the damages in a wrongful death claim?
Damages will generally fall into two main categories called economic and non-economic. In the first are damages to the "estate" for the surviving family members for actual economic losses associated with the death. Losses that are typically assigned to the "estate" include:
funeral and burial expenses
medical and hospital bills for the final illness or injury
lost income, including potential income the deceased person would reasonably have been expected to earn in the future had he or she lived
Then there are damages specifically assigned for the individual family members and the "non-economic" loss that they have suffered. Losses that are typically assigned to the surviving family members include:
the value of household services that would have been provided.
loss of anticipated financial support
loss of love, companionship, care, protection, society, assistance, affection, moral support.
No fixed standard exists for deciding the amount of non-economic damages, except jurors must use their judgment to decide a reasonable amount based on the evidence and your common sense.
Can criminal charges and a wrongful death lawsuit be pursued simultaneously?
Yes, it is possible for criminal charges and a wrongful death lawsuit to be pursued simultaneously. The criminal charges are brought by the state to seek punishment against the responsible party, while the wrongful death lawsuit is a civil claim filed by the surviving family members to seek compensation for their losses. The outcomes of the criminal case may have an impact on the civil lawsuit.
Do I need an attorney for a wrongful death case in California?
While it is not a legal requirement to have an attorney for a wrongful death case in California, it is highly recommended. Wrongful death cases can be complex, involving legal and evidentiary challenges. An experienced wrongful death attorney can provide valuable guidance, handle the legal process, negotiate with insurance companies, and advocate for your rights to ensure you receive fair compensation.
What is California’s “one action” rule in wrongful death?
California's "one action" rule, also known as the "one form of action" rule, is a legal principle that governs the procedure for pursuing multiple claims arising from a single incident, including wrongful death claims.
Under the "one action" rule, California law requires that all claims arising from the same wrongful act or negligence be brought together in a single lawsuit. This means that when a person's death results from the wrongful act or negligence of another party, all claims arising from that incident, including wrongful death claims and any other related claims, must be consolidated into one lawsuit.
The purpose of this rule is to promote efficiency and avoid duplicative or inconsistent litigation. It helps prevent the filing of separate lawsuits for different legal claims stemming from the same incident, which could result in unnecessary burden on the court system and potentially conflicting judgments.
By consolidating all claims into one lawsuit, the court can address all related legal issues and determine the appropriate damages and liability in a comprehensive manner.
It's important to consult with an experienced wrongful death attorney who can guide you through the legal process, ensure compliance with the "one action" rule, and help you pursue all relevant claims in a single lawsuit to seek the maximum compensation available for your losses.
What if one or more of the survivors who are entitled to bring a California wrongful death case decide that they do not want to sue?
In California, the right to bring a wrongful death case generally belongs to specific individuals, such as the surviving spouse, domestic partner, children, or dependent minors. However, individual survivors may have different opinions or preferences regarding pursuing a wrongful death lawsuit.
If one or more of the entitled survivors decide that they do not want to sue, it can complicate the process and potentially affect the ability to file a wrongful death case. In such situations, it's important to understand that the decision of each individual survivor does not necessarily prevent others from pursuing a wrongful death claim.
The survivors who wish to pursue a wrongful death lawsuit can still proceed with the legal action on their own behalf, seeking compensation for their individual losses and damages resulting from the death of their loved one. The other survivors who choose not to sue would simply not be included as plaintiffs in the lawsuit.
It's advisable to consult with an experienced wrongful death attorney who can assess the specific circumstances of your case, explain the legal rights and options of each survivor, and provide guidance on the best course of action. They can help navigate the complexities of the legal process and ensure that the rights of the participating survivors are protected while respecting the decisions of those who choose not to sue.
What if my relative lives for a period of time after the incident and then dies?
If your relative lives for a period of time after the incident that caused their injuries and then subsequently dies, it may impact the legal options available to you. In such cases, two types of claims may arise: a personal injury claim and a wrongful death claim.
Personal Injury Claim ( called a survival action ): If your relative survived for a period of time after the incident, they may have had a viable personal injury claim during that time. A personal injury claim seeks compensation for the injuries, damages, and losses suffered by the injured person. This claim would have been pursued by your relative themselves, or if they were unable to do so, by a legal representative or appointed guardian.
Wrongful Death Claim: When your relative passes away as a result of the injuries sustained in the incident, a wrongful death claim can be pursued by their surviving family members. The wrongful death claim seeks compensation for the losses suffered by the surviving family members due to the death of their loved one. This can include funeral expenses, loss of financial support, loss of companionship, and emotional distress.
In California, it is possible to bring both a personal injury claim and a wrongful death claim arising from the same incident. The personal injury claim would be pursued by your relative or their legal representative while they were alive, and the wrongful death claim would be pursued by the surviving family members after their passing.
What if the decedent was partially at fault in causing their own death in California?
In California, the concept of comparative fault or comparative negligence comes into play when the decedent is partially at fault in causing their own death. California follows a comparative fault system, specifically a "pure comparative negligence" rule.
Under pure comparative negligence, the damages awarded in a wrongful death case can be reduced based on the percentage of fault attributed to the decedent. Even if the decedent was partially responsible for their own death, the surviving family members can still pursue a wrongful death claim and seek compensation for the portion of damages attributable to the fault of other parties involved.
Here's how pure comparative negligence works in California:
Calculation of Damages: The court determines the total damages suffered by the surviving family members. This includes economic damages (such as medical expenses, funeral costs, loss of financial support) and non-economic damages (such as loss of companionship, emotional distress).
Allocation of Fault: The court assesses the percentage of fault for each party involved in causing the wrongful death, including the decedent. This can be done through evidence presented by both sides, witness testimonies, expert opinions, etc.
Damages Awarded: The damages awarded are then adjusted based on the decedent's percentage of fault. For example, if the decedent is found to be 30% at fault, their awarded damages would be reduced by 30%. The remaining damages can be recovered by the surviving family members from other parties found to be at fault.
In a California case with multiple heirs, how are damages divided?
In California, when a wrongful death case involves multiple heirs or surviving family members, the damages are typically divided among them according to their respective losses and relationship to the deceased person. The specific distribution of damages can vary depending on the circumstances of the case and the applicable laws.
Here are some key points to consider:
Proportional Distribution: Damages are generally distributed proportionally among the eligible heirs based on their individual losses resulting from the wrongful death. This means that each heir may receive a portion of the damages that corresponds to their degree of loss.
Losses and Relationship: The damages awarded may take into account various factors, such as the financial support the heirs would have received from the deceased, the loss of companionship, the emotional distress suffered, and other relevant factors. The relationship of each heir to the deceased, such as spouse, child, or parent, may also be considered in determining the distribution of damages.
Settlement Agreement: In some cases, the heirs may reach a settlement agreement regarding the distribution of damages. This can be done through negotiation or with the assistance of their respective attorneys. The settlement agreement would outline how the damages will be divided among the heirs, and it would require court approval to ensure fairness.
It's important to note that the specific division of damages among multiple heirs can be complex and may require careful consideration of individual circumstances. Consulting with an experienced wrongful death attorney is crucial to navigate through the legal process, assess the losses of each heir, and ensure a fair distribution of damages based on the specific details of the case and the applicable laws in California.
Will my California wrongful death case settle out of court?
Whether a California wrongful death case will settle out of court or proceed to trial depends on several factors, including the specific circumstances of the case, the parties involved, and the willingness to negotiate and reach a resolution.
Many wrongful death cases in California do settle out of court through negotiations between the parties and their respective legal representatives. Settlement negotiations can take place at various stages of the legal process, including before a lawsuit is filed, during pre-trial proceedings, or even during trial.
Settling a case out of court has certain advantages, including:
Control: The parties have more control over the outcome and can negotiate a settlement agreement that meets their specific needs and interests.
Time and Cost Savings: Settling out of court generally takes less time and is often more cost-effective compared to a trial that involves extensive preparation, court hearings, and potentially lengthy proceedings.
Certainty: Settlement provides a certain outcome, whereas going to trial introduces uncertainties such as the decision of a judge or jury.
However, it's important to note that not all wrongful death cases are resolved through settlement. Some cases may require litigation and proceed to trial if the parties are unable to reach a mutually acceptable agreement.
The decision to settle or go to trial ultimately depends on the unique circumstances of your case and the advice of your attorney. They will assess the strengths and weaknesses of your case, negotiate on your behalf, and provide guidance on whether a settlement offer is fair and reasonable or if proceeding to trial is in your best interest.
This content is intended for educational purposes only. Phillips Law Offices is authorized to practice law only in California and the above content is intended for California residents only. This content provides only general information, which may or may not reflect current legal developments and you are advised to directly speak with an attorney who is familiar with all the facts and circumstances of your specific case and relevant laws. Phillips Law Offices expressly disclaims all liability in respect to actions taken or not taken based on any of the contents of this website. The above content DOES NOT create an attorney-client relationship and the Phillips Law Offices does not represent you unless you have expressly retained us in writing.