When someone is killed in an accident that is another person’s fault, there may be a number of different ways or laws under which a suit can be brought. Each of those ways is called a cause of action. If the estate of the person who died (the decedent) brings a suit against the person at fault (the defendant), all of the causes of action in that suit must be brought under the Wrongful Death Act.1 For example, a decedent’s suit may use the elements of the law of negligence to allege a cause of action against the defendant, but the action itself would still be subject to the Wrongful Death Act, which has a different statute of limitations (time limit before which suit has to be filed) than a negligence action. All such actions and claims are said to be for the wrongful death of the decedent.
The decedent’s heirs can bring a claim against the defendant through the estate’s administrator or executor. Suit does not have to be filed. Recovery is usually first pursued against the defendant’s insurance company by simply contacting it and opening a claim. More information on this process is available under this site’s Insurance and Personal Injury headings. If the insurance claim is not settled, the administrator or the executor of the estate may sue the defendant on behalf of the estate, in which case the insurance company will hire attorneys to represent itself (and the defendant) in the litigation. Remember that the insurance company never gets mentioned in the suit, but is allowed to act as if the defendant is the one paying whatever is awarded. If a jury is ever told the defendant has insurance, the judge can declare a mistrial.
The Wrongful Death Act defines what the decedent’s estate can sue to recover (the damages the estate seeks). These damages include money for the decedent’s own injuries as well as those of his or her heirs. To explain how this works let’s use the example of a married father of three minor children. For the sake of this example, assume that the decedent was killed in a motorcycle accident caused by a drunk driver, and that he was hospitalized for several days before he died. The law starts getting a lot more personal when specific circumstances get applied, doesn’t it? In this example, the decedent’s estate can recover money for his medical bills, the pain he suffered, and his funeral expenses. The estate can also recover punitive damages because the defendant was a drunk driver. (Punitive Damages are discussed under a separate heading on this site).
Continuing with our example, the decedent’s wife has suffered the loss of her husband and the children have also suffered the loss of their father. The truth is that nothing can adequately compensate them for that loss. Nothing. Nevertheless, the law provides a mechanism to establish a monetary value for their loss. History has demanded this development in order to prevent feuds and even wars. In keeping with this historic necessity, the Wrongful Death Act specifically sets out the kinds of damages the decedent’s wife and children are entitled to recover through his estate. That is, the money due the estate is determined by the sum of the damages suffered by the decedent, plus his wife’s damages, and his children’s damages. The estate brings the action, but much of the value of the action is determined by the amount due to the decedent’s wife and his kids. Each of the family members is known as a “real party in interest.”
The money the estate recovers for each real party in interest compensates them for the decedent’s present monetary value to each of them. Keeping with the example we have been using, everything the dead father would have given his family over the rest of his life has to be prognosticated and given a value; then someone has to figure out what all of that is worth now. The Wrongful Death Act limits this present monetary value of the father’s life to three types of damages: his net income, the things he would have provided to his family (like services and protection), and the companionship and comfort (society) he would have given his family. This last part is particularly difficult. How is anyone supposed to determine the value of a lost relationship with a loved one? Nevertheless, this issue must be addressed in almost every wrongful death claim, and it is the part where lawyers and insurance companies can seem calloused and heartless.
In the best of circumstances, bereaved survivors endure the process of dealing with wrongful death claims and cope with the aftermath as well as they can. The claims process fought with the insurance adjuster can be grueling. But imagine if the family in the example we have been using had to go through a trial. The grieving widow could be cross-examined in front of a room full of strangers about intimate details of her relationship with her deceased husband, so that insurance lawyers could later denigrate the marriage to the jury.
Representing Surviving Families
An attorney representing a family with a wrongful death case must keep his or her heart tender for the pain the family is suffering, while simultaneously trying to gather sufficient evidence to calculate the immeasurable value of a human life and the loss of that life to those left behind. The family is left to either endure the process of proving what they are owed or let it all go without a fight. Nothing about that is easy. And their attorney cannot ever forget that.
Nothing in their careers has seared into our attorneys’ memories like the pain they have witnessed in the aftermath of a sudden death. Neither of them has ever gotten used to it – nor will they. Families come to our office wanting to simply turn the whole process over to someone else and be done with it. We do the best we can to accomplish this, but it almost never turns out that way. Inevitably, there must be in depth discussions about the event and the loss, and emotions that are still so raw cannot help being touched. It is quite something, on the other hand, to help a family finally put a wrongful death claim behind them. The claim often becomes like a hurdle they have to get over before they can really begin to heal.
This is North Carolina’s Wrongful Death Act - N.C.G.S. § 28A-18-2 http://www.ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_28A/GS_28A-18-2.html
1 See Christenbury v. Hedrick, 32 N.C.App. 708, 234 S.E.2d 3 (1977); and State Auto Ins. Co. v. Blind, 185 N.C.App. 707, 650 S.E.2d 25, 29 (2007).