Anyone who loses a loved one in a fatal auto accident is facing emotional and personal devastation. As if dealing with this catastrophic loss is not enough, you must also cope with financial issues that often accompany losing a loved one. In an accident that was caused by the negligence of another person or entity, it is important to choose a wrongful death attorney who has the experience to ensure you are properly compensated for your loss. This includes compensation for funeral expenses, medical costs, lost future earnings and pain and suffering.
If you have lost a loved one in a fatal auto accident, it also is important to understand the following points.
Statute of Limitations
Each state has a different statute of limitations for how long after an accident you can file a wrongful death lawsuit. For many states, you have two years from the date of the person’s death to file a claim against the person, persons or entity that they intend to hold financially liable for the loss. If you do not file your claim during this period, you will never be able to file a lawsuit at all. In a few cases, there may be exceptions to the statute of limitations rule, but you should never count on this.
Because the time you have to file a suit is limited, it is key to file as soon as you can after the death of your loved one.
Who Can File
Most wrongful death lawsuits are filed by direct family, such as spouses, children or parents. In some cases, it may be possible for other family members to file who were financially dependent upon the deceased.
Vital Steps and Tips For Filing a Successful Wrongful Death Lawsuit
First, it is very important to collect all records about the accident as soon as possible after the accident and death. This ensures that all evidence is available. This is especially important regarding witness statements. Eye witnesses to the accident are critical to winning a wrongful death claim, but their memories tend to fade with time. Get their witness statements as soon as possible after the accident.
Second, the police investigation is a very important piece of evidence, as is the police report. It is possible in some cases for the deceased to be blamed for their own death in this report. The deceased cannot speak for themselves, so it is important that your attorney be skilled in reconstructing the accident so that it can be shown that the defendant’s negligence caused the death. It is not unusual for the police report to be wrong, so having a good attorney fighting for you and your loved one is important.
Third, wrongful death claims almost always involve hundreds of thousands or millions of dollars. So, expect the insurance companies involved to put up a fight to pay as little as possible. They may completely deny responsibility for the accident. Having an attorney who knows how to bring aggressive insurance companies to heel is key.
Fourth, witness statements will make or break the case. Memories of the accident will fade. Witnesses to the accident may not remember all details weeks or months later. Your attorney will need to depose these witnesses as soon as possible after the accident.
Key Elements of Successful Wrongful Death Lawsuit
To win compensation in a wrongful death claim in a fatal auto accident, there are two major requirements:
- Accident was caused by another person’s negligence. The accident must have been caused by someone other than your loved one. This might be a driver of another vehicle, the maker of the auto, or the driver of the vehicle in which your loved one was a passenger. This must be proven by a preponderance of the evidence.
- Enough insurance. Many wrongful death lawsuits fail simply because the at fault driver did not have enough insurance or personal assets to pay the claim or judgement. A skilled wrongful death attorney must look for all available insurance or assets from which you can recover the full value of the claim.
Even if the driver of the vehicle that caused the death does not have insurance or assets, there are other parties that can be sued to get compensation:
- Underinsurance or uninsured insurance: Your loved one may have had some amount of insurance that protects them from a person with no insurance or not enough insurance.
- Auto manufacturer: If your loved one died due to an auto manufacturing defect, your family may be able to sue the manufacturer.
- Dram shop law: If your loved one died due to a drunk driver, you may be able to sue to bar or person who served the person. Not every state has a dram shop law, so check with your attorney.