Wrongful Death FAQ

Can I File A Wrongful Death Claim?

In California, a wrongful death claim may be filed by any of the following persons, or by the personal representative of the decedent on behalf of any of the following persons:

• The surviving spouse or registered domestic partner of the decedent
• The children of the decedent
• The putative spouse (the surviving spouse of a void or voidable marriage, who is found by the court to have believed the marriage was valid) of the decedent
• A minor who resided in the decedent’s household for 180 days prior to the death of the decedent and who was dependent on the decedent for at least half of their support
• The grandchildren of the decedent, if their parent (the child of the decedent) is no longer alive
• The deceased’s parents, if they were dependent on the deceased for support

When Can I File A Wrongful Death Lawsuit?

It is best to file as soon as possible after you have lost your loved one. The statute of limitations varies, depending on the type of wrongful death suit:

• In most wrongful death situations the survivor(s) must file a claim within two years
• If the death was caused by medical malpractice, the survivor must file a claim within three years of the date the injury occurred, or within one year after the plaintiff discovers or should have discovered the injury — whichever occurs first
• If the wrongful death was a result of government liability, the wrongful death claim must be filed within six months of the injury

What Damages Are Available To Victims Of A Wrongful Death?

A wrongful death claim provides compensation for losses incurred due to the death of a loved one, while a survivorship claim provides compensation to the estate of the decedent for losses or expenses incurred by the decedent prior to his or her death.

This would apply in situations where a person was gravely injured due to the wrongful or negligent conduct of another, then later died, due to those injuries. The expenses related to the injuries, such as hospital or doctor bills, ambulance fees or loss of earnings during hospitalization, would be reimbursed under a survivorship claim.

California does not allow damages for the pain and suffering of the deceased prior to death in a survivorship lawsuit unless abuse or neglect in a nursing home or another dependent care facility was involved.

Funeral and burial expenses would generally fall under a wrongful death claim, rather than a survivorship claim. In some instances, a survivorship claim and a wrongful death claim may be joined in the same lawsuit. Those who are allowed to file a wrongful death claim may ask for the following damages:

• The monetary value attributed to household services performed by the decedent
• The loss of anticipated financial support from the decedent
• The loss of guidance from the decedent
• The loss of support from the decedent
• The loss of affection and attention from the decedent
• The loss of companionship from the decedent
• The loss of protection from the decedent

For example, minor children who lost their mother would likely be awarded a higher level of damages than a spouse who earned more money and provided more financial support to the family than the decedent.

What Is The Difference Between Compensatory Damages And Punitive Damages?

The goal of a wrongful death claim is to compensate survivors for their losses; compensatory damages provide for both emotional losses and financial losses. These damages are intended to repay the decedent’s loved ones for any costs related to the death, including present and future wage loss, medical expenses prior to death and burial expenses. Depending on the circumstances, pain and suffering damages or damages for loss of companionship may also be awarded as compensatory damages.

Punitive damages are awarded when the jury believes the act committed by the defendant was reckless, intentional or grossly negligent. Punitive damages are meant to punish the defendant, and to discourage similar acts in the future, either by the defendant or others. Punitive damages are awarded in addition to compensatory damages (if they are awarded at all).

What Must Be Shown In A California Wrongful Death Claim?

The elements that must exist in order to have a valid wrongful death claim in the state of California include:

• A person lost his or her life
• That life was lost as a result of the negligence of another person
• As a result of the death, there was a loss of love and emotional support, a loss of financial support and a loss of services
• This loss of love, emotional support, financial support and services spans the past, present and future

It must also be shown there were clear losses related to the death. If, for example, the family in question had been estranged from the decedent for many years, it would be difficult for them to show they depended on the financial and physical support of the deceased.

Could The Person Who Caused The Death Of My Loved One Also Be Criminally Prosecuted?

A civil and criminal case may be filed at the same time. As an example, if another person assaulted your loved one, resulting in his or her death, that person may be charged criminally, and a wrongful death action could also be brought against him or her.

The O.J. Simpson case is one example of how a criminal and civil case could be brought against the same person. In the Simpson case, he was found not guilty in the criminal trial, and guilty in the civil trial.

How Can An Attorney Help My Case?

Once you have obtained legal representation, your claim will be investigated, and evidence gathered. It may be necessary to have an accident reconstruction done by an expert if there is missing evidence due to the length of time since the accident. Legal documents will be filed, which include a demand for damages against the defendant.

If the claim is not settled, your attorney will draft a complaint. Discovery will take place — where both sides ask questions and request documents from the other — witnesses will be deposed, and the case may go to mediation to attempt to settle it outside of the courtroom. If no agreement is reached during mediation, a trial date will be set. If either side is unhappy with the outcome of the trial, an appeal may be filed.

At the Law Offices of John Rapillo, we have the experience and knowledge you need to pursue meaningful compensation after the death of your loved one. Call 949-675-5060 today or reach out to us online for a free consultation.