What Is a Wrongful Death Claim?

​Q: My cousin was killed in an automobile accident. Is his family entitled to compensation?
A: If your cousin’s death was caused by someone else’s negligence, his family is entitled to be compensated. Wrongful death claims are like all claims for personal injuries—it is necessary to establish fault. If another driver caused the accident, there is a basis for a claim.

Q: The driver who caused the accident didn’t have any insurance. Is there still a case?
A: Yes. Even if there is no insurance, a claim may be made against the responsible driver, and a claim may be made on the uninsured motorist coverage of the insurance policies of your cousin or his family.

Q: Who is entitled to be compensated in wrongful death cases?
A: Written (“statutory”) law, rather than the court, says who can recover compensation in wrongful death cases. Generally, the spouse and children are entitled to recover. If your cousin had no spouse or children, then his parents and siblings would be entitled to compensation.

Q: How are damages determined?
A: Wrongful death damages are calculated based upon a number of factors, but the most significant are the financial loss to survivors, followed by loss of companionship and comfort. For example, if your cousin was the sole source of support to a wife and two small children, his family would experience a great financial loss. By the same token, if your cousin was a small child himself, his parents would have little financial loss but would have an enormous emotional loss. Ultimately, a jury will determine the amount of damages that are appropriate if the case does not settle before it reaches trial.

Q: My cousin was killed instantly so he didn’t suffer. Would his family still be able to get compensation for “pain and suffering”?
A: Yes. Thankfully he did not suffer at the time of his death, but of course his family experiences the ongoing suffering of the loss of a loved one. If he had not died instantly, but experienced minutes, hours or days of conscious pain and suffering, the executor or administrator of your cousin’s estate  could make a claim for the suffering your cousin experienced before he died. This is called a survivor's claim. This portion of the claim could benefit his surviving family and could also serve to cover any debts he left. 

Q: Does it matter that my cousin had no will when he died?
A: No. A claim may be brought whether or not your cousin left a will. In fact, his wrongful death claim may not even be affected by the will.

Q: My cousin was not employed when he died. Would that affect the case?
A: No. A case can be made whether or not there is any lost income. If your cousin had been employed, his family’s financial losses might have been greater, but the loss of any potential income from your cousin’s possible future employment also is considered.

Q: What control does the probate court have over the amount of money that can be recovered?
A: The probate court must approve any wrongful death claim settlement. The court also must approve the way in which proceeds from the settlement or trial are distributed to the survivors. If family members cannot agree on how the money will be distributed, then all concerned parties will be notified, and the probate judge will conduct a hearing to determine how much each family member has lost in relation to the others. The judge will then apportion the money accordingly.

1/22/2016

This "Law You Can Use" consumer legal information column was provided by the Ohio State Bar Association (OSBA). It was prepared by Toledo attorney Stuart F. Cubbon of Cubbon & Associates, Co., L.P.A.

Articles appearing in this column are intended to provide broad, general information about the law. This article is not intended to be legal advice. Before applying this information to a specific legal problem, readers are urged to seek advice from a licensed attorney.

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