In California, a wrongful death claim may be filed by any of the following persons, or by the personal representative of the decedent on behalf of any of the following persons:
It is best to file as soon as possible after you have lost your loved one. The statute of limitations varies, depending on the type of wrongful death suit:
A wrongful death claim provides compensation for losses incurred due to the death of a loved one, while a survivorship claim provides compensation to the estate of the decedent for losses or expenses incurred by the decedent prior to his or her death.
This would apply in situations where a person was gravely injured due to the wrongful or negligent conduct of another, then later died, due to those injuries. The expenses related to the injuries, such as hospital or doctor bills, ambulance fees or loss of earnings during hospitalization, would be reimbursed under a survivorship claim.
California does not allow damages for the pain and suffering of the deceased prior to death in a survivorship lawsuit unless abuse or neglect in a nursing home or another dependent care facility was involved.
Funeral and burial expenses would generally fall under a wrongful death claim, rather than a survivorship claim. In some instances, a survivorship claim and a wrongful death claim may be joined in the same lawsuit. Those who are allowed to file a wrongful death claim may ask for the following damages:
For example, minor children who lost their mother would likely be awarded a higher level of damages than a spouse who earned more money and provided more financial support to the family than the decedent.
The goal of a wrongful death claim is to compensate survivors for their losses; compensatory damages provide for both emotional losses and financial losses. These damages are intended to repay the decedent’s loved ones for any costs related to the death, including present and future wage loss, medical expenses prior to death and burial expenses. Depending on the circumstances, pain and suffering damages or damages for loss of companionship may also be awarded as compensatory damages.
Punitive damages are awarded when the jury believes the act committed by the defendant was reckless, intentional or grossly negligent. Punitive damages are meant to punish the defendant, and to discourage similar acts in the future, either by the defendant or others. Punitive damages are awarded in addition to compensatory damages (if they are awarded at all).
The elements that must exist in order to have a valid wrongful death claim in the state of California include:
It must also be shown there were clear losses related to the death. If, for example, the family in question had been estranged from the decedent for many years, it would be difficult for them to show they depended on the financial and physical support of the deceased.
A civil and criminal case may be filed at the same time. As an example, if another person assaulted your loved one, resulting in his or her death, that person may be charged criminally, and a wrongful death action could also be brought against him or her.
The O.J. Simpson case is one example of how a criminal and civil case could be brought against the same person. In the Simpson case, he was found not guilty in the criminal trial, and guilty in the civil trial.
Once you have obtained legal representation, your claim will be investigated, and evidence gathered. It may be necessary to have an accident reconstruction done by an expert if there is missing evidence due to the length of time since the accident. Legal documents will be filed, which include a demand for damages against the defendant.
If the claim is not settled, your attorney will draft a complaint. Discovery will take place — where both sides ask questions and request documents from the other — witnesses will be deposed, and the case may go to mediation to attempt to settle it outside of the courtroom. If no agreement is reached during mediation, a trial date will be set. If either side is unhappy with the outcome of the trial, an appeal may be filed.
At the Law Offices of John Rapillo, we have the experience and knowledge you need to pursue meaningful compensation after the death of your loved one. Call 949-675-5060 today or reach out to us online for a free consultation.
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