According to the National Highway Traffic Safety Administration (NHTSA), car accidents killed more than 32,000 people in the United States in 2013. Losing a loved one in a car crash is devastating. As if the grieving process isn’t hard enough, there are funeral expenses, hospital bills and other expenses to worry about. In a typical automobile crash case, the injured party is able to file an insurance claim and/or bring a lawsuit against the negligent defendant to recover compensation for the injured party’s harms and losses. When a person dies in a car crash caused by a negligent driver, the deceased’s family is able to bring a “wrongful death” claim. The purpose of this article is to explain exactly what a wrongful death claim is, and how to use it to protect your interests and the interests of your family during what is an emotionally and financially devastating time.
Who has the right to bring a Wrongful Death claim?
A wrongful death claim is similar to the claim that could have brought by the deceased if he/she had survived. The underlying claim can arise from any number of circumstances, including general negligence, a dangerous product, unsafe conditions on property and medical malpractice. Generally, in automobile accidents, the underlying wrongful death claim arises because of the negligence of another driver. With all wrongful death claims, there are specific rules under Colorado law which govern who is able to file a wrongful death lawsuit. Most commonly, the deceased’s surviving spouse will bring a wrongful death case. In fact, the law most favors the spouse’s right to bring a wrongful death lawsuit, as it grants the spouse an exclusive right to bring a lawsuit within the first year after the death. Only upon written election of the spouse are other heirs allowed to bring a lawsuit within the first year. But, if the deceased person left no spouse, then other heirs may bring a wrongful death lawsuit within the first year after death.
During the second year after the death, the lawsuit may be brought by the surviving spouse, or any other heirs to the deceased. An heir is defined as a child or lineal descendant of the deceased. Parents of the deceased are also permitted to bring a lawsuit, even though they are not included in the definition of heirs. Rather, parents are only permitted to file a wrongful death claim if the deceased was an unmarried child, or an unmarried adult with no children. Simply put, if the deceased had a spouse or children, the parents are not permitted to bring a wrongful death lawsuit in Colorado.
The term “parents” includes adoptive parents, but does not include parents whose parental rights have been terminated. If the parents are divorced, separated or living apart, either parent may file a wrongful death lawsuit. But, the other parent may then file a motion to seek a share of the proceeds from that wrongful death action. To figure out the amount of each parent’s share, the court will conduct a hearing at which both parents can present evidence regarding the nature of their relationship with the deceased child. The court will consider factors such as custody, control, support, and parental responsibility to determine each parent’s respective share of the proceeds.
Interestingly, going as far back as 1897, Colorado courts have consistently interpreted the wrongful death act as only conferring standing on the spouse, descendants, and parents of the deceased. Thus, siblings of the deceased are not considered heirs and do not have the right to sue for the wrongful death of a brother or sister.
Lastly, the person at fault for the car accident may not recover damages caused by his/her own negligence. So, a negligent driver who caused the death of a passenger cannot recover damages from his/her own insurance company. Say for example a husband is driving a car with his wife as a passenger. If the husband drives negligently, such that he causes an accident in which his wife is killed, he would not be able to recover damages for her death. Although he was solely at fault for causing the accident, he does not have the right to commence a wrongful death action against himself for the death of his wife.
Statute of Limitations
Not only must a plaintiff have standing to sue, he/she must bring the lawsuit within the proper statutory time period. In Colorado, the statute of limitations to file a lawsuit for injuries relating to an automobile accident is three years from the date of the accident. In wrongful death cases, however, the statute is two years from the date of death, regardless of the theory under which the case is brought. So, a wrongful death case arising from negligence resulting in a car accident must be brought within two years from the death, even the injury arose from an automobile accident which has a three years statute of limitation.
Take for example a car accident involving multiple passengers. If one passenger suffered serious injuries but ultimately survived, he/she would be able to bring a lawsuit anytime within three years after the accident. If the other passenger died as a result of the accident, his/her spouse or heirs would have two years from the date of death to bring a wrongful death claim, regardless of the date of the accident.
To ensure your lawsuit is brought within a timely fashion, you should consult an experienced attorney if you think you might have a wrongful death claim.
In a motor vehicle crash case, a jury may award such damages as the jurors may deem fair and just to compensate the plaintiff for harms and losses suffered as the result of the death of the loved one. In a wrongful death case, damages awarded by a jury are intended to repay a victim’s family for the costs of medical bills, lost wages, and loss of companionship, amongst other things. Damages are generally economic or non-economic. Economic damages typically include things like medical expenses and loss of income, while non-economic damages include damages for grief, loss of companionship, and pain and suffering.
In general, there is no limit for economic damages, however, certain statutes, like the Dram Shop Act (which regulates claims against liquor licensees) or the Colorado Governmental Immunity Act (which regulates claims against governmental entities and employees), may override the general damage provisions. For more specific information about how these types of statutes work in conjunction with each other, you should contact an experienced wrongful death attorney.
Non-economic damages on the other hand, including damages for grief, loss of companionship, pain and suffering and emotional distress, have a statutory limit, or “cap,” which is presently $468,010.00 (the cap in increased from time to time to account for inflation).
It is important to note that the cap applies to wrongful death cases on a collective, not individual basis. It applies to each deceased in a lawsuit, not each plaintiff. No matter how many plaintiffs there are in a wrongful death suit, the total amount recoverable for non-economic damages is $468,010.00. So, if the deceased’s spouse and son bring a wrongful death claim, the total amount of non-economic damages that can be recovered by both is $468,010.00. In other words, they not permitted to recover $468,010.00 each.
Although non-economic damages are capped, if the act causing the death constitutes a “felonious” killing, then there is no limitation on the non-economic damages. In such a case, the plaintiff must prove by a preponderance of the evidence that the defendant killed the victim under circumstances that amount to felonious conduct. An actual conviction of a felony crime is not required, and the court in a wrongful death action may independently determine that the defendant’s conduct constituted a felonious killing. In a wrongful death case, your attorney should consider a claim of felonious killing when applicable to avoid the cap on non-economic damages.
In wrongful death cases, “punitive” damages, sometimes called “exemplary” damages, may be awarded to punish a defendant for extreme and outrageous conduct which caused the death of another. An award of punitive damages is intended to punish the defendant for such conduct and to deter future similar conduct by others. Generally, the amount of punitive damages may not exceed the amount of compensatory damages, but the court may increase the award to an amount not exceeding three times the actual damages if certain conditions are present. Pursuing exemplary damages can be fruitful, but a little tricky. For example, a claim for punitive damages may not be included in the original complaint. Rather, the plaintiff must first establish evidence of facts that would support a claim extreme and outrageous conduct by the defendant, and only then can the plaintiff request permission from the court to amend the complaint to include a claim for punitive damages. An experienced wrongful death attorney can assist you with the most effective way to raise the issue of punitive damages.
Part Two of this blog will explain solatium damages, survival actions, and how damages are distributed in wrongful death claims.