Understanding Wrongful Death Actions
Understanding Wrongful Death Actions
Losing a loved one is a traumatic event in anyone’s life. Yet, if this death occurred because of another person’s wrongful actions, this situation can leave anyone feeling overwhelmed, devastated, and filled with a lot of despair. This is especially difficult when individuals are now left with extensive financial hardships.
However, in these situations, you and your family should not have to shoulder these resulting damages on your own. Instead, you deserve justice and financial relief for the losses you endured. That is why in this post, to help you understand how you can go after this monetary recovery, we will be discussing wrongful death actions, including what they are, the laws behind them, and how an experienced wrongful death attorney can help you fight for the compensation you deserve.
Table of Contents
What is a “Wrongful Death” Action?
The term “wrongful death” is used when the death of any person is caused by the wrongful act or neglect of another [1]. It is a civil remedy, governed by Nevada Revised Statute (NRS) 41.085, which allows for an heir or personal representative to bring a claim on behalf of the injured party, whom is now deceased. Wrongful death actions involve suing on behalf of the Estate or the heirs, and/or the personal representatives. Say for example, a loved one was killed in a car accident when he was struck by a drunk driver. You, as an heir or personal representative, are permitted to bring a wrongful death action on his behalf against the wrongdoer.
Under Nevada’s succession laws governed by NRS Chapter 134—the persons who can sue are delineated by survivorship statutes, i.e. spouses, parents, family members, and children all have specific rights under NRS 134 which permits them to bring a claim when a loved one is victimized. These parties have rights to bring a “wrongful death” action along with any other causes of action that may be relevant, such as negligence and/or recklessness that may have brought about the death. For example:
NRS 134.040 Surviving spouse and issue.
(1) If the decedent leaves a surviving spouse and only one child, or the lawful issue of one child, the estate goes one-half to the surviving spouse and one-half to the child or the issue of the child. (2) If the decedent leaves a surviving spouse and more than one child living, or a child and the lawful issue of one or more deceased children, the estate goes one-third to the surviving spouse and the remainder in equal shares to the children and the lawful issue of any deceased child by right of representation.
In addition, the Estate may also be a party to a lawsuit. Typically, an Estate is set up by the surviving spouse, but may be set up and administered by anyone the Court deems fit to administer. The Estate is only entitled to medical expenses, funeral expenses, and punitive damages. So in cases where there is a large hospital bill prior to death, or where conduct leading to the death was very egregious (willful, wanton, or malicious conduct), i.e. a drunk driver, then and Estate may be set up, but consultation with an attorney is advisable.
What is the Difference Between “Heirs” and “Personal Representatives”?
NRS 41. 085 creates two separate wrongful death claims: (1) for heirs of the decedent, and (2) for the personal representative of the decedent [2]. It says, “When the death of any person, whether or not a minor, is caused by the wrongful act or neglect of another, the heirs of the decedent and the personal representatives of the decedent may each maintain an action for damages against the person who caused the death. This means heirs and representatives may maintain separate actions, however, Nevada law does permit them to maintain the action jointly under certain circumstances.
“Heir”—a person who, under the laws of this State, would be entitled to succeed to the separate property of the decedent if the decedent had died intestate [3]. (See NRS 134-Succession Laws)
“Personal Representative” is a person appointed by the court to administer the estate of the deceased—in a wrongful death action this person is recovering for the decedent’s estate.
What Can You Recover For in a Wrongful Death Action?
The classification as an heir or personal representative is important in Nevada, because NRS 41.085 allows different recoveries for each. Further, The Nevada Supreme Court has stated that Nevada’s statutory remedy is exclusive [4]. Essentially, this means that the Nevada courts have taken a hardline approach to recovery in wrongful death actions—they strictly interpret the statute to provide an exhaustive list of what heirs and personal representatives can recover in NRS 41.085(4)and(5) respectively.
“Heirs”—the court or a jury may award each person pecuniary damages for the person’s grief or sorrow, loss of probable support, companionship, society, comfort and consortium, and damages for pain, suffering or disfigurement of the decedent.
In contrast, Nevada courts have held that personal representatives may not recover for lost economic opportunities of the decedent, i.e., loss of probable support, because doing so would allow for a double recovery [5].
“Personal Representatives”—can recover any special damages, such as medical expenses, which the decedent incurred or sustained before the decedent’s death, and funeral expenses; and any penalties, including, but not limited to, exemplary or punitive damages, that the decedent would have recovered if the decedent had lived, but do not include damages for pain, suffering or disfigurement of the decedent.
Another important distinction between the two classifications is that NRS 41.085(4) states that recoveries for heirs may not be used to pay the decedent’s debt, while NRS 41.085(5) provides that recoveries by personal representatives are liable to pay the decedent’s debt.
How Do You Know if You Can Pursue a Wrongful Death Claim?
If you lost a loved one in a tragic accident, it does not mean you will automatically be able to pursue legal action for the loses and damages you sustained. As a result, the only way to know if you can bring a wrongful death claim is to work with a skilled wrongful death attorney. These legal professionals can investigate the accident that took your family member’s life, figure out what happened, determine if you have a viable claim, and help you understand the legal options you have.
Talking to an attorney about your situation does not mean you have to take any legal action or do exactly what the lawyer tells you. These attorneys are only here to help you understand your legal choices and the legal remedies you can pursue. Yet, if you decide that you want to file a wrongful death claim, these legal professionals can quickly get to work, taking the required actions needed before time runs out.
When Can You File A Wrongful Death Claim?
Most civil claims are governed by a statute of limitations—the timeframe you have to file a claim against someone for their wrongdoing. If you miss your time to file, you can no longer bring suit against that person for the injury they caused. If you are worried about the statute of limitations in your case, you should contact an attorney at Benson & Bingham Accident Injury Lawyers, LLC so that we can help you determine if the time to file a claim has passed.
As a general rule, “an action to recover damages for wrongful death must be commenced within two years, otherwise it is subject to the bar of limitations specified in NRS 11.190(4) (e).” [6]
Against a Provider of Health Care. In Nevada, the statute of limitations for wrongful death actions against health care providers is governed by NRS 41A.097, which states, “an action for injury or death against a provider of health care shall not be commenced more than 4 years after the date of the injury or 2 years after the plaintiff discovers or through the use of reasonable diligence should have discovered the injury, whichever occurs first” [7] Further, “the term injury refers to injury to the plaintiff through death of the decedent and not to injury to a decedent through negligent medical treatment which led to death.” [8]
What Accidents Result in Wrongful Death Claims?
An individual is liable for a wrongful death if that person unlawfully causes another person to die.
However, when it comes to these wrongful death claims, various circumstances can result in this type of case, including:
- Motor vehicle accidents, trucking collisions, and motorcycle accidents
- Pedestrian accidents
- Bicycle accident
- Intentional actions
- Defective product accidents
- Premises liability incidents
- Occupational exposure to hazardous substances or conditions
Yet, this list is not exhaustive of every situation that can give rise to a wrongful death claim. That is why if you have lost a loved one in an accident, even one not indicated on this list, you should still reach out to an experienced wrongful death lawyer as soon as possible. These attorneys can review what happened, go over your options, and help you pursue the damages you need.
Who Are the Potential Defendants in a Wrongful Death Lawsuit?
Generally, when it comes to a wrongful death claim, any individual or company can be held liable for causing another person’s death when it comes to a wrongful death claim.
For instance, parties that plaintiffs often name as defendants in wrongful death suits include:
- Motorists who kill another person on the road because they were drunk driving
- An individual who intentionally shoots another person
- A manufacturer of a defective part that kills another person
- A company who employed a loved one when an injury took their life.
However, in Nevada, to show that another person or entity is liable for a wrongful death, you must first establish:
- An individual died;
- The death was the result of another person’s negligence, recklessness, or wrongful action;
- The individual bringing the wrongful death claim is a personal representative or an heir of the decedent; and
- These plaintiffs suffered damages because of this death.
Who Can File a Wrongful Death Lawsuit?
In Nevada, the only parties who are allowed to bring a wrongful death action are:
- The personal representative of the decedent’s estate; and
- The decedent’s “intestate heirs,” which often means their surviving family.
For instance, if an individual is married and wrongfully killed in an accident, their surviving spouse, domestic partner, or children would be their heirs. On the other hand, if the victim is not married and childless, then their heirs would include their parents, siblings, or the closest surviving family member that is not a sibling or parent.
Time Limitations and Wrongful Death Claims
Generally, plaintiffs have only two years to file a wrongful death claim from the date of the victim’s death. If these plaintiffs wait too long to file their claim, the case will likely be dismissed, and they will no longer be able to proceed with legal action to fight for the compensation and damages they deserve.
However, there may be exceptions to this rule that can impact this filing period. For these reasons, if you lost a loved one in an accident, it is encouraged that you consult with an experienced wrongful death attorney. An attorney can help determine the maximum amount of time you have to file your case and help ensure that your legal motions and documents are submitted to the correct court before the statute of limitations expires.
Damages that May Be Awarded in a Wrongful Death Claim
Because wrongful death claims are considered the most serious civil claim under Nevada’s laws, it is not surprising to find that these cases often result in extensive settlements and jury awards. However, the types of damages that can be recovered will often depend on whether the estate is recovering or the decedent’s heirs are. For example:
A Personal Representative
A personal representative in a wrongful death case may recover:
- Funeral expenses
- Burial costs
- Special damages such as medical bills and expenses that the deceased incurred before their death
- Compensatory damages that the victim would have been able to recover from the defendant had they lived after the incident
- Punitive damages that the victim could have recovered from the defendant had they lived after the accident
Heirs
On the other hand, heirs can recover pecuniary damages related to:
- Grief or sorrow
- Loss of probable support
- Loss of companionship
- Loss of society
- Loss of comfort
- Loss of consortium
- Pain, suffering, or disfigurement of the decedent.
However, to make sure you fight for the highest financial reward possible, it is recommended you speak with an experienced wrongful death attorney as soon as you can. These lawyers can investigate all the relevant evidence related to your loved one’s death and bring in experts to help determine what damages you are entitled to.
Actions to Consider Before Pursuing a Wrongful Death Claim
After losing your loved one, the last thing you want to think about is what actions you need to take to be able to bring a successful wrongful death claim. However, if you want to pursue legal action and recover compensation for the damages and losses you and your family endured, you should consider doing the following:
Obtain a Death Certificate
Before you can bring a wrongful death suit, you first need to provide proof of death. A copy of this certificate can often be requested from the city office where the death occurred or online.
Gather Evidence
If possible, you should also try to collect as much documentation and evidence regarding your family member’s passing. This should include pictures and videos of the incident that caused the death, medical reports, bills associated with the wrongful death, and police reports.
However, do not worry if you cannot gather all of these documents. Once you retain an experienced wrongful death lawyer, these attorneys can handle this information gathering for you and make sure to secure the documents needed to prove your case.
Check for Witnesses Who Saw What Happened
If there were people who witnessed what happened to your family member, you should try to get their personal information, such as their names and contact details. These witnesses can often provide you and your lawyer with valuable information regarding the incident and help back up your claim.
Get the Legal Help You Need After Losing a Loved One, Reach out to an Experienced Wrongful Death Attorney Today
Following a wrongful death accident, you and your family should not be left to tackle the challenging legal battles that follow on your own. Fortunately, with an experienced wrongful death attorney on your side, you will not have to. These lawyers can not only provide you with the legal assistance you need to bring this wrongful death action, but they can also help get you through this devastating time in your life.
Once you retain a lawyer, they can:
- Go over the accident that took your loved one’s life, figure out whether you have a viable wrongful death claim, and determine which legal options you can pursue.
- Go over all of your questions regarding your legal case and the legal proceedings involved.
- Thoroughly investigate the wrongful death accident and secure the evidence needed to prove fault and damages.
- Bring in the experts such as accident reconstructionists and doctors to validate your claim.
- Prepare a detailed case on your behalf and go after everyone accountable for your family member’s death.
- Correctly prepare and submit your legal documents before the statute of limitations expires.
- Tackle all the negotiations with the other side and fight for the just settlement you and your family need.
- Prepare for trial if the other side does not want to negotiate fairly and go after maximum financial recovery.
If you and your family lost a loved one in an accident, do not wait any longer to retain experienced legal counsel. Instead, contact a skilled and knowledgeable wrongful death lawyer today for a free case evaluation and find out how these lawyers can help you fight for the justice you and your family deserve.
[1] (NRS) 41.085
[2] *ALCANTARA EX REL. ALCANTARA V. WAL-MART STORES, Inc.*, 130 Nev. Adv. Op. 28, 321 P.3d 912, 914–15 (2014)
[3] Intestate succession is governed by NRS CHAPTER 134.
[4] *Pitman v. Thorndike*, D. Nev. F. Supp. 870, 1991
[5] *ALSENZ V. CLARK CTY. SCHO. DIST.*, the Nevada Supreme court held that “subsection (4) provides that
the heirs have a right to recover for loss of probable support. This element of damages translates into,
and is often measured by, the decedent's lost economic opportunity. Surely the estate could not
recover the same type of damage under subsection five. This would amount to double recovery,
an unreasonable result.”
[6] *PARKER V. CHRYSLER MOTORS CORP.*, 88 Nev. 560, 561, 502 P.2d 111, 112 (1972)
[7] NRS 41A.097
[8] *GILLOON V. HUMANA INC.*, 100 Nev. 518, 687 P.2d 80 (1984) citing (NRS 41.085, 41A.097)
Free Consultation
