Yesterday, police charged a van driver in connection with an accident that occurred on May 4th and ended up killing the other driver involved.  Obviously, punishment assigned or money awarded will not take the place of a loved one lost, but how would the deceased driver’s loved ones go about collecting money to deal with things like funeral costs and medical bills?

Under common law, there was no cause of action for wrongful death because an action for personal injury did not survive the death of the injured party.  However, many states, including North Carolina enacted legislation creating a cause of action for wrongful death.  The purpose of doing so was to put the beneficiaries of the decedent in the same position they would have been in had the decedent not died.

North Carolina statute G.S. 18-2(a) provides that

[w]hen the death of a person is caused by a wrongful act, neglect or default of another, such as would, if the injured person had lived, have entitled the injured person to an action for damages therefor, the person or corporation that would have been so liable, and the personal representatives or collectors of the person or corporation that would have been so liable, shall be liable to an action for damages, to be brought by the personal representative or collector of the decedent; and this notwithstanding the death, and although the wrongful act, neglect or default, causing the death, amounts in law to a felony.

A wrongful death suit is based on the theory of negligence.  So the same elements must be proven in a wrongful death suit as in any negligence case - duty to exercise reasonable care, breach of that duty, causation (both actual and proximate), and damages.

The personal representative of the decedent (either the administrator if the decedent died without a will or the executor if the decedent died with a will) is given the power “[t]o maintain actions for the wrongful death of the decedent according to the provisions of Article 18 of this Chapter and to compromise or settle any such claims, whether in litigation or not” by G.S. 28A-13-3(a)(23).  This section also provides that it is the personal representative’s duty when distributing proceeds from a settlement “to take into consideration and to make a fair allocation to those claimants for funeral, burial, hospital and medical expenses which would have been payable from damages which might have been recovered had a wrongful death action gone to judgment in favor of the plaintiff.”

G.S. 28A-18-2(a) allows the “reasonable and necessary expenses, not including attorneys’ fees, incurred in pursuing the action” to be paid from the assets of the estate.  After the action has terminated, any money recovered is first used to reimburse the estate for the “expenses incurred in pursuing the action” and then paid to cover the attorneys’ fees.  Any remaining amount

is not liable to be applied as assets, in the payment of debts or devises, except as to burial expenses of the deceased, and reasonable hospital and medical expenses not exceeding four thousand five hundred dollars ($4,500) incident to the injury resulting in death, except that the amount applied for hospital and medical expenses shall not exceed fifty percent (50%) of the amount of damages recovered after deducting attorneys' fees, but shall be disposed of as provided in the Intestate Succession Act.

Note that the remaining recovered amount is distributed pursuant to the Intestate Succession Act even if the decedent died with a will.

The types of damages recoverable in a wrongful death suit are also specified by statute.  G.S. 18-2(b) states that

Damages recoverable for death by wrongful act include:

(1)    Expenses for care, treatment and hospitalization incident to the injury resulting in death;

(2)    Compensation for pain and suffering of the decedent;

(3)    The reasonable funeral expenses of the decedent;

(4)    The present monetary value of the decedent to the persons entitled to receive the damages recovered, including but not limited to compensation for the loss of the reasonably expected;

a.     Net income of the decedent,

b.     Services, protection, care and assistance of the decedent, whether voluntary or obligatory, to the persons entitled to the damages recovered,

c.     Society, companionship, comfort, guidance, kindly offices and advice of the decedent to the persons entitled to the damages recovered;

(5)    Such punitive damages as the decedent could have recovered pursuant to Chapter 1D of the General Statutes had the decedent survived, and punitive damages for wrongfully causing the death of the decedent through malice or willful or wanton conduct, as defined in G.S. 1D-5;

(6)    Nominal damages when the jury so finds.

The statute of limitations for a wrongful death suit is two years from the date of death.  However, there is an exception to this rule.  G.S. 1-53(4) provides that “whenever the decedent would have been barred, had he lived, from bringing an action for bodily harm because of the provisions of G.S. 1-15(c) or 1-52(16), no action for his death may be brought.”  This means that the statute of limitations cannot be any longer than three years from the date of the injury.  So if a person is injured in a car accident and dies from his injuries two years after the date of the accident, the wrongful death suit must be brought within a year from the date of death instead of two years from the date of death.

If your loved one has been killed in a car accident, visit rflaw.net for legal help.