Each state has its own statutory provisions regarding wrongful death claims. Those statutes define “wrongful death,” and determine who can file the lawsuit, the deadlines that apply and the types of damages that may be recovered. These are, basically, the 4 things your wrongful death lawyer will tell you about these types of claims.
What is “Wrongful Death?”
A wrongful death claim arises when one person dies because of the negligent or intentional conduct of someone else. A wrongful death claim is basically a special type of personal injury claim. The difference is, with personal injury claims, the person who was injured usually brings his or her own lawsuit. In wrongful death cases, on the other hand, the injured person is deceased, so someone else must bring the claim to court
Who Can Bring a Wrongful Death Claim?
In Arkansas, the personal representative of the deceased person’s estate is the only person who can bring the wrongful death lawsuit. If there is no personal representative — for example, if the deceased person is a child who has no estate — then the claim can be filed by the deceased person’s heirs at law. In Arkansas, that would include:
- the deceased person’s surviving spouse, children, parents, or siblings
- individuals standing in loco parentis
- individuals to whom the deceased stood in loco parentis.
In Missouri, those with first priority in bringing a wrongful death claim are the surviving spouse, child or grandchild. In claims that involve the death of a child, the parents can bring the lawsuit. If none of these options are available, then a surviving sibling would be next in line. The last option is the personal representative, but if no one has been appointed, the court will appoint a “plaintiff ad litem.”
Statute of Limitations period for wrongful death Claims
The statute of limitations period provides a deadline for a person to file a lawsuit. These statutes vary by state, as well as, by cause of action. In Missouri, the statute of limitations for a wrongful death claim is (3) three years from the date of the death. The statute of limitations for wrongful death claims in Arkansas is one year from the date of the decedent’s death.
Damages available in wrongful death claims
Arkansas law separates wrongful death claims into two sub-categories: the estate claim and the family claim. The estate claim is made by the estate of the deceased, seeking compensation for losses the deceased person suffered as a result of the unexpected death. Typically, these damages will include:
- funeral and burial costs
- medical bills for treatment of the deceased person’s last illness or injury
- pain and suffering the deceased endured before death, and
- the loss of the value of the deceased person’s remaining life, including wages he or she would likely have earned.
The family claim, on the other hand, is made by the surviving family members of the deceased. The family claim seeks compensation for losses the family members suffered, as a result of losing their family member. These damages, paid to the family, include:
- loss of the financial support of the deceased person
- loss of household services, and
- loss of care, comfort, and guidance.
Neither of these categories of damages become part of the estate’s taxable assets. Also, damages paid to the family are paid directly to family members, not to the estate.
In Missouri, damages for wrongful death are very similar to those allowed in Arkansas. The purpose of a wrongful death claim is to seek compensation in the form of monetary damages, including the following:
- funeral and burial expenses
- medical bills related to the deceased person’s final injury or illness
- value of wages and benefits the deceased would likely have earned
- pain and suffering experienced by the deceased just prior to death
Also, there are potential damages for the “reasonable value of the services, consortium, companionship, comfort, instruction, guidance, counsel, training, and support” the deceased person provided to surviving family members. This is similar to the family claim recognized in Arkansas.
Proving a Wrongful Death Claim
Depending on the case, making the connection between the wrongful conduct and the death can be pretty easy, such as with an auto accident and medical malpractice. However, in other situations, like the use of defective products, the connection may not be discovered without extensive investigation and research.
He is licensed to practice law in the United States District Court for the District of Kansas, eastern Arkansas, western Arkansas, and western Missouri. He was Deputy Prosecuting Attorney in Crawford County, Kansas from 1987-1989.
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