If you are injured in a car accident, then you probably know that you can file a personal injury claim against the driver and/or his insurance company to recover for your injuries and losses. If you are injured by a doctor, then you probably know that you can file a medical malpractice claim against the doctor and/or the hospital. But what happens when someone dies because of a car accident, or injuries sustained in that accident? Or because of medical malpractice?
When someone dies and there is legal fault, a wrongful death claim may exist. In North Carolina, wrongful death occurs “[w]hen the death of a person is caused by wrongful act, neglect or default of another, such as would, if the injured person had lived, entitled the injured person to action for damages . . .” N.C. Gen. Stat. §28A-18-2(a).
Wrongful death claims are civil actions. Therefore only monetary damages can be recovered, someone cannot go jail. There are of course situations where a criminal action will be brought for the same case. It depends entirely on the facts surrounding the wrongful death.
Who Can Bring a Wrongful Death Claim?
After a person dies, if the person had a will then they likely named a personal representative to handle the estate. The personal representative is more formally known as an executor (in the case of a male) or an executrix (in the case of a female). The deceased (decedent) is said to have died in “testate.”
If the decedent did not have a will, then they are considered to have died “intestate” and North Carolina intestate succession laws apply. Intestate succession laws exist to provide an orderly and consistent way for estates to be distributed. If there is no will then a person can file a petition to be named administrator. If the executor/executrix declines to serve, or if no one petitions to be named administrator, a court will appoint someone to serve. Typically parents, spouses or adult children serve as executors/executrixes.
The executor/executrix is the person who can file suit on behalf of the decedent’s estate. Even though the estate is filing suit, the monies recovered in a wrongful death claim do not go to the estate; they are awarded to the beneficiaries of the will.
Who Are the Beneficiaries In a Personal Injury Claim?
Under North Carolina law, only beneficiaries can recover in a wrongful death claim. If the decedent had a will, then the beneficiaries will be named directly in the will and therefore easy to identify. If there was no will, then the beneficiaries will be determined according to North Carolina’s intestate succession law (N.C. Intestate Succession Act). For example, if the decedent had a spouse and no children or parents, the spouse would be the only beneficiary. If the decedent had no surviving spouse or parents, but 3 surviving children, then the estate would be divided equally, with ⅓ passing to each child.
How Long Do I Have to File a Wrongful Death Claim?
Under North Carolina law, most wrongful death claims must be filed within 2 years of the death. If the executor/executrix does not do so within the applicable period, the court may refuse to hear the case. There are certain circumstances where the 2 year statute of limitations may be extended, so it is important that you talk to a Charlotte, North Carolina attorney who can advise you as to what statute of limitations applies in your specific wrongful death case.
What Has to be Proven in a Wrongful Death Claim?
To have a successful wrongful death claim, the executor/executrix (plaintiff) will have to prove their case. The plaintiff will have to show that the other party (defendant) was negligent and that the defendant’s negligence directly caused the decedent’s death. Proving only that the defendant did something illegal, like speeding in the case of a car accident, will not be enough in a wrongful death claim. Plaintiff will have to take it a step further and show that the defendant’s speeding directly caused the decedent’s death.
North Carolina is a contributory negligence state. Therefore, if the decedent was even partially responsible for say a car accident that caused their death, the defendant may not be liable for damages and no monies would be awarded. Using the above example, contributory negligence may bar a plaintiff’s recovery if the decedent failed to stop at a stop sign and was hit by the defendant as he/she sped through it.
What Damages Can be Recovered in a Wrongful Death Claim?
N.C. Gen. Stat. §28A-18-2(b) provides that the following damages can be recovered:
- Expenses related to the injury that resulted in the death including hospitalization, prescriptions, surgery, and hospice
- Pain and suffering - on the part of the deceased person
- Funeral and burial expenses
- Lost income
- Loss of services, protection, care and assistance that the deceased person would have provided
- Loss of society, companionship, comfort, guidance and advice that the deceased person would have provided
- Punitive damages, if they would have been recoverable
Punitive damages are only available under very specific circumstances in North Carolina. For example, if the person who caused the injury leading to the death is found to have done so through malice, or willful or wanton conduct, then punitive damages could apply. Punitive damages are not intended to compensate but rather to punish the wrongdoer and deter similar future behavior by both the wrongdoer and other members of society.
Our Charlotte, North Carolina Attorneys Can Help
Losing a loved one is tough under any circumstances. Losing a loved one because of the negligence of another is particularly painful. Wrongful death lawsuits are fact intensive and time specific and a lawyer can advise you as to what you need to prove, what you could recover and what deadlines are involved. A lawyer can take your case to court if that becomes necessary.
The Charlotte, NC based lawyers at Rosensteel Fleishman, PLLC are experienced wrongful death attorneys who can help you understand your rights and whether or not you should proceed with a claim. Please contact our office at 704-714-1450. There is no fee for an initial consultation.