One of the most traumatic things that can happen in anyone’s life is losing a loved one. It’s bad enough when we lose someone because of old age or a disease or illness, but the pain and agony is amplified when a loved one dies because of another person’s negligence. When this happens, the last thing you want to be doing is trying to figure out what your rights are in seeking compensation to protect your family. But beyond that, wrongful death actions are different from any other claim that is made.
So what is a wrongful death action? Wrongful death is when a person dies because of the negligence of another person. Probably the most common cause of these types of claims are automobile accidents, but other causes of death such as on another person’s property (see my blog on premises liability) or even the medical negligence of a doctor can all fall under this statute. It’s a lawsuit that is brought under Colorado statute (legislative made law) to pursue damages (compensation) on behalf of heirs of the deceased individual. An heir is considered to be a spouse, children and grandchildren. If the decedent was unmarried, the parents may bring the wrongful death action. Furthermore, in the first year, the spouse of the decedent has the only right to file an action, but he or she can also elect to allow the other heirs to join the lawsuit (must be in writing). In the second year the spouse and other heirs are treated equally with regard to the right to sue. Obviously, if there is no spouse, the other heirs may proceed with the action independently and in the first year. This is important because there can only be one wrongful death action filed under the statute. This means that when you sue, you must make sure you sue every potential responsible party in the original action and every possible heir needs to be included unless the spouse elects to proceed alone. You cannot file the lawsuit, settle it and then find out six months later that another party is either responsible or partly responsible. If that happened, the party you missed goes free with no consequences because if you did sue them, they would be entitled to have the lawsuit dismissed. Similarly, if an heir is not part of the wrongful death action, they cannot go back and sue independently later.
So what compensation can the heirs seek in a wrongful death action? The heirs can seek compensation for economic losses associated with lost wages of the deceased over the projected remainder of their working life (with some adjustments), funeral expenses, and other possible financial losses, ie, losses that could be tracked by an accountant. Additionally, the heirs can pursue non-economic damages to recover compensation for their grief and sorrow as well as loss of companionship.
Where the statute gets tricky is if the decedent wasn’t killed instantly and survived for a time after the incident, but dies later due to the injuries from the incident. An example of this is where the individual is injured and goes to the hospital for care but then dies a week later from their injuries. The heirs cannot recover for the medical bills that accrued between the time of the incident and the time of death under the wrongful death statute. In order to recover compensation for these losses a separate action has to be made called a Survival action which is brought under a separate statute where the personal representative of the estate may pursue the medical bills on behalf of the estate, not the heirs.
These are just some of the dangers inherent in the legal side of a wrongful death case. You and your family should not be trying to figure out this very complex kind of case on your own. You have enough to deal with in surviving your loved one’s loss without having to deal with insurance adjusters and companies. Let us carry the legal load for you and your family.
Call our office for a free initial consultation at 719-633-6620.