A wrongful death occurs when a person dies due to the negligence, carelessness, or intentional act of another individual or entity.
Common causes of wrongful deaths include car accidents, medical malpractice, workplace accidents, and defective products.
When such an untimely and unfortunate death occurs, the surviving family members may file a wrongful death claim to seek compensation for damages resulting from their loved one’s loss.
When the death of a person is caused by the negligent wrongful act or omission (failure to act) of another, the personal representative for the deceased person is entitled to bring a legal claim against the wrongdoer or negligent party, if the deceased could have brought such an action for injury had the decedent survived. In an action under Oregon’s wrongful-death statute, there must have been a tort (negligence), and the wrongful conduct or failure to act must have been an act or omission for which the decedent could have maintained a tort claim. See Apitz v. Dames, 205 Or 242, 246, 287 P2d 585 (1955). Oregon’s wrongful-death statute places the personal representative in the decedent’s shoes from a legal perspective, imputing to the personal representative whatever rights the decedent possessed to make a claim for negligent injury at the time of death. Storm v. McClung, 334 Or 210, 223, 47 P3d 476 (2002).
In general, to succeed in a wrongful death claim, the plaintiff must prove the following four elements:
Duty of care:
The plaintiff must establish that the defendant owed the deceased a duty of care in the particular circumstance. For instance, drivers have a duty to exercise reasonable care not to harm others on the road.
Breach of duty:
Next, the plaintiff must prove that the defendant breached this duty of care through a negligent action or inaction. Using the previous example, a driver could breach their duty by texting while driving, causing an accident.
Causation:
The breach of duty must be the direct cause of the deceased’s death. The plaintiff needs to establish that, but for the defendant’s negligent act, their loved one would not have died.
Damages:
Finally, the plaintiff must show that they suffered compensable damages and losses as a result of the wrongful death, such as medical expenses, funeral costs, loss of companionship, loss of protection, loss of guidance, or loss of financial support, etc.
The personal representative (usually a family member) of the deceased’s estate may bring the wrongful death action. The personal representative acts in place of the “beneficiaries” who are eligible to receive compensation in the lawsuit. The following beneficiaries can receive compensation in a wrongful death lawsuit:
Spouses
Children
Parents
In some cases, stepparents, and stepchildren
In wrongful death claims, plaintiffs can seek a variety of damages to help alleviate the financial burden following their loved one’s death. These include:
Economic damages:
These damages compensate for the financial losses incurred due to the wrongful death. They typically include medical expenses, funeral and burial costs, loss of the deceased’s income, loss of benefits like health insurance, and loss of services.
Non-economic damages:
These damages are awarded for the emotional pain and suffering the family endures due to the wrongful death. Non-economic damages may include loss of companionship, love, guidance, pain and suffering, and support from the deceased.
Punitive Damages:
It’s important to note that the types of damages and their amounts will vary depending on the specific circumstances of each case. In egregious cases, punitive damages may deter future wrongful conduct.
The settlement or judgement amount can vary depending on the case, the person who died, the relationship to the survivor(s), the defendant, and the wrongful or negligent conduct.
You may have up to three years from the date of the person’s death to file a lawsuit against a private party, but you have much less time if you are suing the government or government entities, (because tort notice time limitations can be short).
You should immediately contact an experienced wrongful death attorney to protect your family’s rights. This can be emotionally difficult, but it must be done to prevent potential legal problems.
If children are involved, please focus your emotions on helping the children and their future by trying to obtain funds for them. You will get the needed strength by focusing on the children’s needs.
The process of pursuing a wrongful death claim typically begins with the filing of a complaint in a civil court by the deceased’s personal representative or surviving family members. This complaint must contain the relevant allegations supporting the claim and the specific damages sought.
After the complaint is filed, the discovery phase ensues, during which both parties gather evidence through various means, including document requests, interrogatories, and depositions. This phase helps the attorneys and insurance companies better understand the strengths and weaknesses of their respective cases.
Once discovery is complete, the parties may attempt to settle the case through negotiations, mediation, or other alternative dispute resolution methods.
If a settlement cannot be reached, the case proceeds to trial, where the plaintiff must prove the necessary elements to establish the wrongful death claim.
A good settlement is more likely if the insurance company knows that you are represented by a skilled lawyer.
A wrongful death lawsuit is a complex process, and the resolution will take time. In some cases, the case may settle within a few months. However, many wrongful death actions can take one to two years to settle or reach a verdict. Even if the case does not go to court, settling it will take at least a few months.
Several factors will determine the timeline for settling wrongful death claims, which can vary. Some factors are:
Complexity of the Case:
No two wrongful death cases are the same. Some are more complicated than others, especially if there’s disagreement about what happened or who is responsible.
Investigation and Evidence Gathering:
Gathering information takes time. We need to collect a lot of information to build a strong case. This includes medical records, statements from people who saw what happened, and expert opinions.
Insurance companies:
Negotiating insurance can take a long time, especially if there’s disagreement on fault or claim value.
Legal Procedures and Trials:
Court Cases Can Extend the Timeline. If your case has to go to court, it can take longer and will depend on the court’s schedule.
Willingness to Settle:
Sometimes, how fast things go depends on how willing everyone is to come to an agreement. Most wrongful death lawyers aim to settle things quickly and fairly, without unnecessary delays.
Jurisdictional Factors:
Different Places, Different Timelines. The time it takes can also depend on where the case is taking place. Different courts might be busier than others, which can affect the timeline.
Our goal at the Herron Law Firm is to simplify and expedite the process. If you’re dealing with a wrongful death and need legal help for your family, talk to our Portland wrongful death lawyer to find out just how much we can help. You may be pleasantly surprised. And you deserve something good after such a tragedy as the loss of someone that you love.
Yes, ORS 31.710 states that the amount of non-economic damages you can receive in a wrongful death case is $500,000. Non-economic damages refer to the loss of companionship and affection, your emotional and mental anguish, and the pain and suffering your loved one endured when they died.
But the cap does not apply to economic damages, including future wages, medical bills, burial expenses, etc. The cap also does not apply if punitive damages are awarded for extremely reckless and dangerous behavior that led to the death.
The law states that the jury is not allowed to be told about the damages cap. Even if the jury awards you more than $500,000 for non-economic damages, the judge will reduce it to the amount allowed by law.
Every wrongful death lawsuit is unique, making it challenging to determine an average value. However, a nationwide review of wrongful death settlements shows that many resolve between $500,000 and $1 million. The amount you receive from a lawsuit depends on the insurance coverage or the defendant’s worth and how much the involved insurance companies fear your attorney as a trial lawyer. Excellent jury trial lawyers are scarry to insurance companies because those rare attorneys can persuade juries to award large verdicts.
Insurance companies settle a significant proportion of wrongful death lawsuits within the policy limits. This implies that the case is settled for the maximum amount that the insurance policy allows. Attorney Bart Herron has a wealth of experience in obtaining the full insurance policy limits on his cases.
Engaging the services of an experienced wrongful death attorney is crucial in ensuring a favorable outcome in your case. A skilled attorney can help you negotiate with insurance companies, gather crucial evidence, navigate the complex legal process, and, ultimately, secure the compensation you deserve.
Moreover, wrongful death claims are subject to specific deadlines, known as statutes of limitations. These timeframes vary by state and type of claim. Missing these deadlines may result in losing your right to compensation. An experienced attorney can ensure that your case is filed on time and in accordance with all required legal formalities.
Typically, an insurance company disburses the funds to you or your designated representative. If a drunk driver hits and kills your father, their car insurance should pay you for the damages. If the motorist was on duty during the incident, his employer’s business insurance policy would be liable to pay for the losses to your family.
Another avenue for obtaining compensation is through the defendant’s personal estate, provided they have substantial assets. If not, your compensation will solely come from any applicable insurance policy.
While any civil lawyer can handle a wrongful death lawsuit, it’s highly recommended to employ a wrongful death attorney who is well-versed in this type of litigation, and who is an excellent jury trial attorney.
Although most attorneys have a comprehensive understanding of numerous legal subjects, each area of law has its unique aspects, court precedents, and laws that can vary. A wrongful death or personal injury attorney who specializes in this area is likely to have a more robust background in civil lawsuits compared to a lawyer who specializes in patents or estate planning, etc.
Determining compensation or settlement in a wrongful death case is difficult and requires help from an experienced attorney specializing in wrongful death cases.
A wrongful death attorney plays a crucial role in providing legal representation and support to the families or survivors of individuals who have died due to the negligence or misconduct of another party.
Here’s an overview of the key responsibilities and roles of a wrongful death attorney:
Case Evaluation:
Free Initial Consultation: The attorney begins by offering a consultation to understand the case’s details and determine its validity under wrongful death laws.
Legal Advice: They provide legal advice on the merits of the case, potential outcomes, and the steps involved in pursuing legal action.
Investigation:
Gathering Evidence: The attorney conducts a thorough investigation to collect evidence supporting the claim. This includes medical records, witness statements, and any other documentation that can prove negligence or wrongdoing.
Expert Consultation:
They may consult with forensic experts, medical professionals, and accident reconstruction analysts to strengthen the case.
Filing the Lawsuit:
Preparation of Legal Documents: The attorney prepares and files the necessary legal documents to initiate the lawsuit.
Representing in Court: Although many wrongful death cases are settled out of court, if a trial is necessary, the attorney represents the family, presenting evidence and arguing the case before a judge or jury.
Settlement Negotiation:
Negotiating with Defendants: Wrongful death attorneys negotiate with the defendant’s insurance company or legal representatives to reach a fair settlement.
Mediation and Arbitration: They may also participate in mediation or arbitration as alternative dispute resolution methods to settle the case outside of court.
Financial Recovery:
Compensation Calculation: The attorney helps calculate the fair amount of compensation owed, considering factors such as lost wages, medical expenses, funeral costs, and loss of companionship.
Securing the Settlement: They work to secure a settlement or court award that adequately compensates the family for their loss.
Legal Support and Guidance:
Emotional Support: Beyond legal advice, wrongful death attorneys often provide emotional support to grieving families, guiding them through the legal process with sensitivity.
Handling Paperwork: They handle all legal paperwork and procedural requirements, allowing the family to focus on healing.
Fighting for you:
Legal Advocate: A wrongful death attorney serves as an advocate for the deceased and their family, striving to ensure justice is served and holding the responsible parties accountable for their actions.
By undertaking these responsibilities, wrongful death attorneys play a pivotal role in helping families navigate the complexities of the legal system during one of the most challenging times of their lives. Their expertise not only aids in securing financial compensation but also in achieving a sense of justice and closure for the bereaved.
These lawsuits can be brought against people, companies, government agencies, employees, etc. For instance, if there is a car accident involving a drunk driver and the driver was working for his company at the time, a wrongful death action could have many defendants:
Filing a wrongful death claim serves to hold negligent parties accountable for their actions, providing financial compensation to support the surviving family members. Understanding the key aspects of wrongful death claims and the legal process involved is essential for seeking justice in your loved one’s memory.
As you embark on this journey to secure the compensation you deserve, an experienced attorney can be your guiding light, offering compassionate support and expert guidance every step of the way.
When you need skilled legal representation for your wrongful death claim, choose Herron Law. Our dedicated team of seasoned wrongful death attorneys is here to help you navigate these challenging times and achieve the justice you seek. Contact us today for a consultation.
A wrongful death lawsuit is a civil matter, not a criminal one.
If the defendant has been charged with a crime stemming from your loved one’s death, that is a separate legal matter that is unrelated to your wrongful death lawsuit.
It is important to understand that a wrongful death lawsuit is a civil matter, not a criminal one. If the defendant has been charged with a crime stemming from your loved one’s death, that is a separate legal matter that is unrelated to your wrongful death lawsuit.
It is possible for someone to not be charged with a crime but to be sued for wrongful death in civil court. It’s also possible to be found innocent of the crime in criminal court but found liable in civil court for the death.
Generally, compensation received from wrongful death claims is not subject to tax. This is because such funds are typically viewed as stemming from a physical ailment or personal injury. Knowing that these funds are not taxable can aid in more effective financial planning.
However, there are certain exceptions where state or federal taxes may apply to these funds.
If you think you have a strong case after losing a loved one, you should speak to wrongful death attorneys soon.
Wrongful deaths can stem from various situations. The most common causes include:
VEHICULAR and Transportation Accidents: Automobile Crashes, Commercial Trucking Accidents, Public Transportation Accidents.
MEDICAL RELATED Causes: Medical Malpractice, Birth-Related Injuries, Nursing Home Neglect, and Abuse.
WORKPLACE and Occupational Hazards: Industrial Accidents, Construction Site Incidents, Maritime and Offshore Accidents, Terrorism, and Public Attacks.
PRODUCT LIABILITY and Consumer Goods: Defective Products, Pharmaceutical Errors.
CRIMINAL ACTS and Intentional Harm: Assault and Violent Crimes.
ENVIRONMENTAL and PUBLIC SAFETY Negligence: Natural Disaster-Related Deaths, Fire, and Explosion Incidents.
SPECIAL CONSIDERATIONS: Elderly and Vulnerable Populations, Children, and Minors.
