Coppola Law Blog

Wrongful Death Claims in Auto Accidents – Part Two

How Does the Jury Calculate Damages?

In a wrongful death case brought by the spouse, heir or parent of the deceased, the jury will ultimately determine the amount of the compensation due to the plaintiff. The types of recoverable damages in a wrongful death case are the same as damages recoverable in automobile accident cases, with a few exceptions. As previously discussed, recoverable damages include economic damages and non-economic damages. The jury’s task is to calculate the total amount of the damages based upon several considerations.

Economic damages are the easiest to calculate, because they are numbers that are quantifiable. Medical bills, loss of income, or any other monetary losses that can be proved are recoverable by the plaintiff. The jury may consider several factors when determining economic loss, including the deceased person’s age, health, ability to earn money, and history of providing financial support to the plaintiff. The plaintiff will need to prove that the deceased person earned money, would have continued to earn money, and would have provided well for the family had they person not been killed by the negligent act of another. The jury may consider anything that is relevant to the plaintiff’s economic losses, including anticipated future wage increases the deceased person would have reasonably been expected to earn during their life.

For example, a child suing for the death of his father will recover more economic damages if he can show that his father was dedicated to improving his family’s position in life, and would have spent much of the money he would have earned on the family. On the other hand, if the father had a history of spending all his earned money at the local bar, and not on his family, his son would have a more difficult time persuading the jury that he should be entitled to his father’s future earnings.

Although calculating the economic losses suffered by a spouse or a child of a deceased person can be challenging, it is even more difficult to determine the recoverable economic damages for a parent who has lost a minor child. Most courts believe that the parents should be entitled to some amount of economic damages for the loss of a child, under the theory that at some point during a parent’s life, the child will provide financial support and services to the parent. But, especially with regard to minor children, it is nearly impossible to determine whether the child would have become a wage earner and would have eventually been able to support the parents. Generally, the jury will assume that had the child survived, he or she would have provided at least some financial support and services to the parents, such that parents are entitled to some amount of money for their economic losses.

Non-economic damages can be more difficult for a jury to calculate, because there is no way to quantify one’s suffering as a result of the death of a loved one. Since there is no hard and fast rule for how to determine how much compensation to award the plaintiff, the jury will examine the nature of the relationship between the plaintiff and the deceased to determine how the loss of the deceased may have affected the plaintiff. If the relationship was distant, then the plaintiff is likely to recover less because the jury will most likely assume the plaintiff was affected less by the death. For example, a surviving spouse who had a short or strained marriage with the deceased will likely recover less than a surviving spouse who had maintained a long and loving marriage. Recovery would also be lower in a case of a child plaintiff who had little to no relationship with a deceased parent.

It is important to note that non-economic damages only include damages sustained after the deceased’s death. Non-economic damages for pain and suffering sustained by the deceased before death are not recoverable. For example, the if the deceased was burned in a car accident, lived for 6 months and then died, the spouse and/or heirs could not recover for the deceased’s pain and suffering during that 6 month period.

Finally, just like an automobile case, comparative fault can affect the plaintiff’s share of the damages. For more information on comparative fault, take a look at our previous blog post. In a wrongful death case, the fault of the deceased is imputed to the plaintiff and under the comparative fault statute, this may have the effect of reducing the recovery or defeating the claim altogether.


As previously discussed, the more distant the relationship between the plaintiff and deceased, the lower the non-economic damages may be. In cases in which the plaintiff and deceased did not have a close relationship, the plaintiff may opt to recover “solatium” damages. These damages are in lieu of non-economic damages and are capped at $50,000, currently $87,210 adjusted for inflation. If the plaintiff had a poor relationship with the deceased, solatium damages allow them to recover damages without having to prove an amount of non-economic damages.

It is important to note that with regard to solatium damages, the principles of comparative fault do not apply. If the defendant is found liable for the deceased’s death, the full amount of solatium damages are recoverable regardless of any comparative negligence by the deceased person. Generally, in an auto accident case, if the injured party was 25% at fault and the defendant was 75% at fault, the plaintiff would only be able to recover 75% of damages awarded by the jury. Solatium damages on the other hand, are not subject to reduction by comparative negligence. Thus, even if the deceased is partially at fault, a person seeking solatium damages can recover the entire amount allowed by statute.

Survival Action

In addition to a wrongful death claim brought by a spouse, heir, or parent, the estate of the deceased victim also has the right to bring a “survival action” against the negligent party. In a survival action, the estate of the deceased person steps into the shoes of the deceased to be able to bring a lawsuit for damages. Survival actions allow the estate to recover medical and funeral expenses, as well as damage claims that accrued before the victim’s death. Unlike wrongful death cases, punitive damages are not permitted. Furthermore, damages for pain and suffering and physical disfigurement suffered prior to death are not recoverable, nor are prospective profits or earnings after date of death.

In order to bring a survival action, a personal representative must be appointed to the estate. A personal representative is the executor of the deceased’s estate, and carries out the deceased’s wishes regarding distribution of his/her assets, and oversees any other necessary affairs. Generally, the personal representative will be the surviving spouse, but it could any family member, or even a friend with the court’s permission.

Survival actions are crucially important if a wrongful death action is precluded for some reason. For example, if there is no spouse, heir, or parent, then no one may have standing to bring a wrongful death suit. But, a personal representative of the estate would still be able to bring a survival action, and thus be able to recover at least some amount of damages caused by the negligent driver whose acts caused the loss of a life.

Distribution of Proceeds

After the court makes a determination as to damages and issues a judgment, the proceeds must be allocated amongst the spouse and heirs. The distribution is shared even if the person entitled to a share was not a party to the lawsuit. So, even if a widow exercises her exclusive right to  commence an action within the first year after death, it does not deprive other parties of their statutory interest in the judgment. If the widow is ultimately awarded a judgment in the action, any heirs, regardless of whether they joined the lawsuit, can partake of the proceeds if permitted by law.

In one Colorado case, a surviving wife was awarded $10,000 for economic losses resulting from the death of her husband. Even though those losses were based solely on her economic losses, the court decided that the deceased’s son was entitled to a share of the proceeds because he would be entitled to money per statutes regarding descent and distribution. This case was decided before the Uniform Probate Code was enacted to govern the distribution of all property after death, so the result may be different today, but in any event, the statutes must be carefully examined to determine how much the heirs are entitled to share in the proceeds. You should consult with a qualified wrongful death attorney to determine exactly how the proceeds of any wrongful death recovery would be divided between the surviving heirs.

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