Losing a loved one because someone else was acting carelessly can result in significant costs to you and your family. These costs include the loss of both the financial and emotional contributions of your loved one.
You could be entitled to compensation through what is known as a wrongful death claim. This kind of claim seeks to put you and your family in as close a financial position to where you would have been, had the crash that led to your loss had never happened.
North Carolina’s wrongful death law is also designed to account for the value of the loss of companionship and emotional support that a family faces after losing a loved one. There is no formula for this type of valuation; it is something that is determined on a case by case basis.
A Charlotte wrongful death attorney from Johnson & Groninger PLLC is available to review your wrongful death case. Schedule your appointment by calling (704) 200-2009 today.
How North Carolina Defines Wrongful Death
North Carolina law defines wrongful death as, “the death of a person is caused by a wrongful act, neglect, or default of another.” The statute allows the deceased person’s estate (typically represented by a family member) to bring a claim against the person or corporation that would “liable to an action for damages.”
As with other negligent claims, damages include both monetary and non-monetary, as well as short and long-term damages. We’ll discuss more below.
4 Important Things to Know About Your NC Wrongful Death Claim
First and foremost, only certain individuals may file a wrongful death claim. Aside from this rule, there are others that could also limit your ability to pursue your claim.
Working with a wrongful death attorney to assess your case and provide guidance on the best path toward compensation will ensure that all rules and relevant factors are put to work in support of your case.
1. Who May File
North Carolina law states that a wrongful action can be brought by “(t)he personal representative or collector of the decedent.”
What this means is that only a person who is designated as the personal representative of the deceased’s estate is able to file a claim on their behalf as the “plaintiff.” The plaintiff is the person who is filing the claim while the defendant is the party against whom the claim has been filed.
The “personal representative” of the deceased will vary depending upon whether or not the deceased person had a will.
If the Deceased Had a Will
When the deceased had a will, then the personal representative will be the executor that is named in the will. This will often be a surviving spouse of the deceased or may be an attorney if they have one.
If the Deceased Did Not Have a Will
If your loved one did not have a will, the personal representative capable of bringing a wrongful death suit would be a person who qualifies as the administrator of the deceased’s estate under North Carolina intestate succession laws.
Intestate succession laws determine how the property of persons is divided and how their rights and those of their heirs are protected when there is no will.
When the executor or administrator is unwilling or unable to serve as the personal representative of the deceased, the court will appoint the public administrator to serve.
2. Types of Recoverable Damages
When you have lost a loved one due to a tragic crash, it’s first necessary to prove that someone or something else was at fault, or “negligent.” Negligence means the failure to use the care, or “duty,” that a reasonable person would use under the same or similar circumstances.
To be entitled to compensation, you must prove both that you suffered damages and that the damages are a result of the other person (or corporation’s) negligence.
The list of damages that a family may claim in a wrongful death case include:
You’re entitled to the cost of any medical expenses linked to the crash that led to your family member’s death, including emergency room care and any ongoing care that was necessary before their passing.
Funeral and burial expenses
The costs associated with the funeral are included in the wrongful death as these costs would not have been incurred were it not for the fatal injury.
The deceased person’s pain and suffering before they died
When a person experiences pain and suffering before their death, the family may receive the compensation that their loved one would have received, had they survived.
Loss of the deceased person’s income
Losing a loved one can leave your family with reduced income for many years. Part of your wrongful death damages includes the replacement of the income of your lost loved one from the time of the crash through the likely remainder of their working life.
Loss of companionship and services provided by the deceased
Wrongful death claims seek to compensate you for not only the lost financial contributions of your loved one but also their emotional contribution to your household.
The law also allows compensation for the loss of services; for example, the cost of having to hire someone to do things your loved one normally would have done around the house.
3. Who Receives Compensation
Only certain persons can collect the proceeds of a wrongful death claim or lawsuit. The people who are eligible to receive compensation through a wrongful death claim are those who would have received proceeds under the intestate succession laws of the state. This is true, even if your deceased loved one had a will.
The proceeds of the wrongful death action go directly to the beneficiaries and do not pass through the estate. What this means is that creditors of the estate do not have access to the wrongful death proceeds, with the exception of medical providers who treated the victim for injuries from the crash, and there are limitations on those providers’ rights to collect.
When the deceased had a will, North Carolina intestate laws might determine that the person who qualifies for wrongful death benefits is different from the beneficiaries of the will.
4. How Long You Have to File
If you do not bring your claim within the time allowed by the statute of limitations, you sacrifice your ability to ever bring your claim at all.
For most wrongful death cases, the statute of limitations or expiration period for a wrongful death claim is within two years from the date of the the crash that led to the victim’s death.
The best way to ensure that you file in a timely manner and maintain your rights is by reaching out to a Charlotte wrongful death attorney as soon as possible after the crash.
Because it takes time to investigate and file a lawsuit in a wrongful death action, you should reach out to an attorney as soon as possible, so that the attorney has time to negotiate the claim, if appropriate, and/or prepare a lawsuit.
4 Steps in Proving Wrongful Death
To collect compensation for your wrongful death claim, you must prove that another party was negligent and caused the crash.
Negligence is a complex legal term that has four parts: duty, breach, causation, and damages. The first of these, duty, means that the party has some responsibility toward you.
Examples of duty include the responsibility of drivers on the road to be safe, sober, and follow the rules of the road, or the duty that companies have to ensure that their products are safe for their intended use.
In North Carolina, you must also consider the issue of “contributory negligence.” If the victim in any case is found to have contributed to their injuries or death, then the victim, or their family, is entitled to no damages. This law exists only in North Carolina and 3 other states and the defense will take full advantage of it by trying to pin some fault on the victim. We have seen cases in which the defense argued that a bicyclist victim was at fault for not wearing bright enough clothing, even though the defendant was texting and driving and hit the victim from behind. We have seen cases where the defense argued that the victim was a fault for not looking before proceeding through a green light, even though the defendant blew a red light. Without a lawyer who understands North Carolina’s contributory negligence law and how to counter it, this law can be one of the biggest pitfalls for claimants.
In North Carolina, you must also consider the issue of “contributory negligence.” If the victim in any case is found to have contributed to their injuries or death, then the victim, or their family, is entitled to no damages.
This law exists only in North Carolina and 3 other states and the defense will take full advantage of it by trying to pin some fault on the victim.
We’ve seen cases where the defense argued that the victim was a fault for not looking before proceeding through a green light, even though the defendant blew a red light.
Without a lawyer who understands North Carolina’s contributory negligence law and how to counter it, this law can be one of the biggest pitfalls for claimants.
2. Breach of Duty
Once it is proven that another party has a duty towards you, it must be proven that the duty was breached This is usually a fairly straightforward task in motor vehicle wrongful death cases, but may be complex in other types of cases, where what constitutes a breach is less clear.
The next element of negligence is causation, which means that the breach of duty must also be the cause of the victim’s injuries or death. Medical testimony is usually required to prove causation, except in cases where no one would dispute that the injury was caused by the crash. In wrongful death cases, causation is usually not contested, but may be if there is an argument that the victim died from causes other than the crash.
The final step, after proving duty, breach, and causation, is proving damages. Some elements of damages, like medical bills and lost income, are typically straightforward in wrongful death cases.
Non-Monetary damages, like loss of companionship and services, are much more complex and require the consideration of factors that range from personal characteristics of the victim and their relationship with their family to the county in which the case would be tried if it went to a jury.
Your local wrongful death attorney from Johnson & Groninger PLLC will handle all these complexities to help your family receive the compensation you deserve for all of your losses.
How a Charlotte Wrongful Death Lawyer Can Help
The pursuit of a wrongful death action starts with the collection of evidence and ends with a successful insurance or company settlement negotiation or a jury verdict.
Throughout the process of building a case, the defense (either an insurance company, corporation or individual defendant) will defend the claim by looking for evidence that helps them deny responsibility or argue for lesser damages.
Understanding this process can be an insurmountable task, compounded by dealing with the loss of a loved one. Hiring a lawyer who is experienced in handling and litigating wrongful death cases is your best bet to ensure you recover the full amount of your and your family’s damages.
Did you lose a loved one in a crash that wasn’t their fault? We can help.
To be clear, insurance companies and even law enforcement may incorrectly assign fault. In other words, even if a police report or insurance adjuster tells you that your deceased family had some fault in their own death, it is usually a good idea to get an opinion from an experience wrongful death lawyer.
Working with a wrongful death attorney can help you focus on managing your life after your loss. We handle everything from the gathering of evidence to the negotiating of your claim with the insurance company, taking the stress out of your daily life.
Having a wrongful death attorney by your side as soon as possible after your loss will provide you with the support and advocacy you need. To set up an initial case assessment on your wrongful death claim, schedule an online consultation or call (704) 200-2009 now.