Wrongful death, as the name suggests, is when a person dies due to the wrongful or negligent act of another person. If you have a family member who died as a result of a wrongful or negligent act of another person, you can file a wrongful death lawsuit against the defendant. The aim of these claims is to compensate the family and heirs of the decedent for the losses they have to bear due to the death of their family member.
But, the big question is,
Who can file a wrongful death lawsuit?
Let's find out about it in detail.
A Wrongful Death Lawsuit - What is it?
There are two approaches to a wrongful death lawsuit, a historical approach and a modern approach. Let's discuss them one by one.
1. Historical Approach
Before the wrongful death legislation was passed in the 19th century, you could not sue a person for the death of another person in the civil court. While the perpetrator was still to go to jail, they were not sued for the damages that the death of the victim caused the family members and the heirs of the victim. As a result of this rule, the perpetrator was better off financially if the victim died than if they were injured. They had to pay for the expenses of the injured victim but once they died, there was no further financial expense to be paid to the family members.
2. Modern Approach
Today, all the states have enacted laws that supersede the harshness that rested in the old rule. Thus, with the new rule, a representative of the decedent can file a lawsuit against the defendant for the damages inflicted upon the family members and heirs of the decedent because of their death. This includes the civil damages, financial damages and also the damages for mental suffering, grief and sorrow.
Who Can File A Wrongful Death Lawsuit?
While there are laws in each state about filing a lawsuit for wrongful death, the person who can file it varies from one state to another. There are two main systems that are followed in the wrongful death lawsuits across various states.
1. The Lord Campbell System
Most of the wrongful death statutes here are patterned after the Lord Campbell's Act that was enacted in 1846 by the British Parliament. Under this statute, a wrongful death claim and lawsuit can only be filed by someone who is a designated beneficiary of the decedent. This is based on the relationship between the deceased and the plaintiff. Thus, a widower or a widow and children are the statutory beneficiaries of the decedent and they can file a wrongful death claim.
The benefit of suing is limited to one class only. For example, if the decedent has living family members in the first class, only they have the right to file for a lawsuit claim against wrongful death. If there are no living members of the decedent in this class, only then the right passes to the next class and so on. Thus, if there are no living members of any class at that time, you cannot bring up a wrongful death claim against the defendant.
Here are some examples of designated beneficiaries.
· Immediate members of the family including children, spouse, parents of unmarried children, adopted children.
· Distant members of the family such as grandparents and siblings
· Parents of a child who died in the womb
· Life or domestic partners
· Members who were financially dependent on the decedent
2. The Loss to Estate System
States that do not use the Campbell's system follow the loss to estate system. In this system, a claim for wrongful death can only be brought up by the estate of the decedent to compensate for the losses resulted from the death of the decedent. The lawsuit in this case is brought up by a personal representative to the estate of the decedent. They are appointed by a probate court for the administration to the assets of the decedent. They will file a lawsuit under their own name and any amount that is recovered in damages will be held as a special trust. This will then be disbursed to all the beneficiaries designated by the law.
Damages Included in Wrongful Death Claim
The losses sustained in each wrongful death claim vary from case to case. There are many factors to consider by the court before the final figure for damages can be decided. Some of the most common things that are included in the final damages to be paid include but are not limited to:
· Pre-death pain and suffering of the deceased
· Medical costs that were incurred before the death of the victim
· Cost of funeral and burial
· Loss of the expected income of the deceased
· Loss of inheritance as a result of the victim's death
· Value of service that would have been provided by the deceased had they been alive
· Loss of consortium
· Loss of nurturing, care and guidance that would have been provided by the deceased
· Loss of companionship and love
Choose Us for Wrongful Death Claims
If you are facing a wrongful death situation and are not sure how things should be proceeding, you should have an experienced personal injury attorney by your side who understands the ins and outs of the wrongful death claims and lawsuits. If you are looking for a personal injury lawyer in Kentucky, you can get in touch with us for free consultation. We have helped hundreds of clients over the years and understand the system inside out. Our seasoned personal injury attorneys will work closely with you and do all that is possible to help you in your wrongful death claim. Contact us by clicking here.