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Wrongful Death and Survivor Actions Should be Handled With Care

In the month of May 2015 the lawyers at Eberhardt Law Group have filed two wrongful death lawsuits on behalf of parents with children who perished in automobile accidents. These cases can be thorny for lawyers who do not normally deal in wrongful death actions. First, the lawyer representing the decedent's family must take off his or her litigation hat and console and counsel the grieving family. Second, and equally as important for the family’s future well-being, is making sure the lawsuit is pled with specificity-containing appropriate claims for damages pursuant to California law.

In California there are various procedural issues to address prior to filing the lawsuit. First, an experienced lawyer must determine whether the potential client possessed a relationship to the decedent such that a claim exists. Second, how many other claimants exist, if any, and has an action already been initiated. Third, what damages have been incurred, or will be incurred by the potential client. Lastly, determining whether the one-year statute of limitations has expired.

Wrongful death actions are strictly statutory in California. [See Cal. Code Civ. Proc. § 377.60]. In a wrongful death lawsuit, economic (typically receipts for expenses or lost wages) and non-economic damages (pain and suffering) are recoverable. The common misperception is that punitive damages are available in wrongful death lawsuits. These claims can only be brought in survivor claims and will be discussed in more detail later. [See Cal. Code Civ. Proc. § 377.61].

Parsing out which individuals can be included as Plaintiffs is a crucial aspect of wrongful death litigation. Including the wrong, or improper plaintiff, will not only subject the lawsuit to a demurrer motion, but will all but announce the lawyer's inexperience to the likely seasoned, defense attorney representing the defendant. In California, the decedent’s surviving spouse, children, dependent stepchildren (and dependent minors residing in the household for at least six months), and dependent parents are by law entitled to state a claim for wrongful death. [See Cal. Code Civ. Proc. § 377.60].

Naming a personal representative as the plaintiff can avoid problems. For example, if the action is filed in the name of a representative the lawyer need not consolidate various actions which, in the absence of such a filing, might be separately brought by separately represented relatives.

It is important to consider claims for damages beyond potential statutory recovery for decedent’s wrongful death. If there are claims for punitive damages, medical bills, lost earnings, property damage, or other losses incurred by the decedent before death, then decedent’s personal representative (or successor in interest) should plead a separate cause of action seeking compensation for such losses. [See Code Civ. Proc. § 377.30].

In California if the estate does not initiate the survivor action the attorney need only include a declaration by one or more successors in interest, setting forth their entitlement to proceed on the decedent’s behalf with the lawsuit. [See Cal. Code Civ. Proc. §377.32].

As alluded to earlier, a separate distinction determines whether punitive damages can be recoverable in the surviving cause of action. Under California Probate Code §573 and Code of Civil Procedure §377.34, punitive damage claims can survive the death of the injured party. An experienced lawyer will safeguard the complaint from demurrer by alleging that the decedent not only survived the accident (however briefly) and incurred property damage in the moments prior to his/her death. By alleging both these facts the decedent’s heirs can seek punitive damages. Buell-Wilson v. Ford Motor Co. et. al. (2008) 73 Cal. Rptr. 3d 277.

If you, or a loved one, are searching for a wrongful death lawyer please do not let an inexperience lawyer handle your claims. Make sure to be very clear during the initial consultation that you are seeking a lawyer who has expereince filing wrongful death and survivorship cases. If the lawyer provides a vague or ambiguous reply you should terminate the relationship immediately. Otherwise, you and your family may end up seeking a malpractice lawyer in the future. Please give us a call (714) 551-9996. The consultation is always free.

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