A comprehensive guide on filing a wrongful death lawsuit
Losing a loved one is a harrowing experience. It is even more devastating if the death could have been prevented. When you lose someone because of another person’s or company’s recklessness, unlawful acts, or negligence, it is a wrongful death.
- Who Can Make a Claim?
- Wrongful Death or Survival Action?
- Causes of Wrongful Death
- Car Accidents
- Motorcycle Accidents
- Truck Accidents
- Workplace Accidents
- Medical Malpractice
- Defective Products
- Damages Covered in a Wrongful Death Lawsuit
- How to establish a pecuniary loss
- Adjustments that may arise
- Using Expert Testimony
- Punitive Damages
- Who can file?
- How to file
- How to Win
- What is a “Duty”?
- Settlement vs Lawsuit
- How Soon Should I file
Who Can Make A Claim?
As a surviving family member, you can file for a wrongful death lawsuit. And if you win your case, you’ll be able to recover financial and non – economic losses that resulted from the death.
There is nothing in this world that can replace the loss of a spouse, a child, a parent, or anyone else in your family. However, the New Orleans, Louisiana wrongful death lawyers at Smiley Law Firm want to ensure that you and your family are well compensated for the loss of your loved one during these hard times.
Our professional injury attorneys in New Orleans and Baton Rouge help families who lost a loved one to get financial security. We are here to make sure that you are dearly compensated.
It’s our duty to ensure that you understand everything you need to know about a wrongful death lawsuit.
Wrongful Death or Survival Action?
A wrongful death lawsuit is often confused with a survival action. You can also file for a survival action lawsuit if your decedent suffered through an injury before dying. The difference between a wrongful death lawsuit and a survival action is that a survival action focuses on the suffering of the deceased person. While a wrongful death lawsuit focuses on the grief and the financial losses of the deceased family.
In Louisiana, the claimant is required by the law to recover the damages of a survival action within one year from the day the decedent died.
A survival action encompasses the recovery of pain and suffering of the victim, his/her medical bills, and lost earnings similar to what the deceased could have been compensated in a personal injury lawsuit if he or she survived.
On the other hand, a wrongful death lawsuit is more focused on the family. The spouse of the deceased or child of the deceased can file a civil lawsuit to be compensated. Compensation in a wrongful death includes the grief and suffering endured by the family, funeral expenses, any outstanding medical bills, and the current and future income the family has lost due to their loved one’s death.
Now that we have these two covered, let’s get into the details of a wrongful death lawsuit.
Causes of Wrongful Death
As I said earlier, a wrongful death is caused by a careless person or company that neglects the duty of care to others. Most of the time, it’s difficult to identify the person or entity that is responsible for a wrongful death. However, with an experienced attorney, you will file a strong case against the defendant and seek the highest compensation for your suffering.
Let’s have a look at some of the most common causes of wrongful deaths.
1. Car Accidents
It’s estimated that over 300,000 lives are lost each year due to care accidents, not even counting the number of casualties involved. Car accidents rob us our family members who made us happy, gave us a reason to work hard, and supported us financially. Car accidents result from:
- Auto defects
- Drunk driving
- Road repair and other construction activities
- Distracted driving
- Road defects
- Reckless driving
Car accidents can take away our loved ones but the culprits behind the accidents have a legal obligation to compensate you. An experienced attorney will help you get compensated so that you can grieve in peace.
2. Motorcycle Accidents
These types of accidents are caused by drivers who negligibly fail to take notice of motorcycle drivers when changing lanes. Most of the time these accidents leave motorcycle drivers with terminal injuries that can chew up your finances.
If your loved one is involved in an accident, don’t let the bills pile up on you, let us fight for you while you nurse your loved one without the weight of the bills. However, if you lose a loved one due to a motor cycle accident, call us immediately. Most of these accidents are caused by careless culprits that we can easily file a strong case and get you compensated.
3. Truck Accidents
Truck drivers can also be negligent of the others on the road and cause fatal accidents. Here are numerous ways that trucks and semi-trucks can cause accidents.
- Driving during adverse conditions
- Mechanical defects
- Driving intoxicated
- Truck company negligence
- Driving with an overweight load
- Driver errors and negligence
- Aggressive driving
4. Workplace Accidents
All employers have a responsibility to ensure that their employees are safe at all times while working. Most fatal accidents occur on an industrial level – that’s why there are rules laid out by OSHA to protect workers. Accidents in the workplace include:
- Manufacturing accidents
- Railroad worker injuries
- Barge and Towboat Accidents
- Asbestos and Mesothelioma
- Repetitive motion and strain injuries
- Transportation industry accidents
5. Medical Malpractice
We love our doctors and nurses; we also love the work they do to save our lives. However, some individuals will fail to follow procedures and try to cut corners which most of the times kills the patients. Here are some examples of such instances.
- Wrong diagnosis
- Birth injury
- Surgical errors
- Defective medical devices
- Lack of informed consent
- Delayed and improper treatment
- Pharmaceutical errors
6. Defective Products
Manufacturers are required by the law to ensure that their products meet all the necessary requirements so that their products are safe for public use. If they fail to meet these requirements, they are supposed to be held responsible.
Here’s a list of some examples of defective products that cause wrongful deaths.
- Defective vehicle
- Dangerous childcare products and Toys
- Toxic food production and Containers
Now that we have established some common causes of wrongful death, let’s factor in the damages covered in a wrongful death lawsuit.
Damages Covered in a Wrongful Death Lawsuit
In the world of law, we use financial or pecuniary as the main measure of damages or losses suffered in a wrongful death. The word ‘pecuniary’ is just a fancy way of saying ‘losses measured in financial terms.’
Pecuniary losses stand for both the losses to the victim as well as to the victim’s family. These losses also include loss of services, support, loss of prospect of inheritance, and hospital bills and funeral expenses. Most laws across United States provide that all pecuniary losses shall be awarded accordingly and fairly to the decedent’s family.
If the family of the deceased paid for the medical care and funeral of their loved one, they may recover the expenses too.
How to establish a pecuniary loss
There are a few factors that come into play when compiling a pecuniary loss. Let’s list them down here.
- Character or condition of the decedent
- His/her earning capacity
- Life expectancy
- Health and intelligence
Calculating all of these factors to form an accurate pecuniary loss is not easy.
The main considerations that come into play when awarding damages is the decedent’s circumstances at the time of their death.
For example, when an adult breadwinner dies and leaves a family behind, the jury will major on recovering loss of income and loss of parental guidance.
The jury will also consider the decedent’s earnings at the time of his/her death, the last known earnings if he/she was unemployed at the time of death and their potential future earnings.
Adjustments that may arise during a Jury’s Award
After your attorney presents your case, the jury will determine the size of your financial compensation. However, the jury’s ruling will not be the final word. There are other factors that can cause the size of the award to be adjusted either upwards or downwards.
For example, if the decedent often squandered his earnings, this might reduce the amount that you’ll be compensated.
Similarly, if the decedent had poor earnings, the amount of compensation will be reduced, even if he/she had great potential and/or supported children.
The jury can also award lost earnings if the decedent was unemployed but had worked in the past; as long as the plaintiff (that is you) can present evidence of decedent’s average earnings in the past when he/she was employed.
If you fail to provide evidence for past earnings, the jury will have to terminate their current damage award and start building a new one again.
Using Expert Testimony to Determine a Pecuniary Loss
Sometimes the jury will require expert opinion to determine how much you ought to be compensated for losing your loved one. In this case, you can present an expert to determine the value of the decedent to you and your family.
Besides the damages of a wrongful death, punitive damages can also be awarded in cases that involve malicious wrongdoing to deter others from similar behavior and punish the wrong doer. In Louisiana, any person found guilty of wrongly killing another person with an intention to kill or acting in a way that they were consciously aware of their actions and intended to do so, can be subjected under punitive damages.
Our lawyers will work hard to ensure that you are compensated for all the losses you have suffered.
It’s not just anyone who can file for a wrongful death lawsuit. Read on to have a better grasp on filing for a wrongful death lawsuit.
Who can file for a wrongful death lawsuit?
Wrongful death lawsuits are usually filed by close family members of the decedent such as the wife, husband, the parents or children. The most viable person to file a wrongful death lawsuit is usually the spouse but if the decedent was not yet married, any other person related to him/her as mentioned above can file a wrongful death lawsuit.
How to file for a wrongful death lawsuit
It’s very important to file for a wrongful death lawsuit if you lose a loved one to an accident that could have been easily prevented. Filing for a wrongful death will not only give you the fair compensation that you and your family deserve, you also get to hold the guilty person accountable for their actions publicly in a Louisiana court of law.
The judge gets to decide what you’ll be compensated. We work hard to ensure that you’ll be listened and considered in every possible way to get the most out of your compensation.
Here’s a list of some of the compensations you’ll get when you win a wrongful death lawsuit.
- Funeral and burial expenses
- Medical bills and any other hospital expenses
- All the lost wages and benefits that your loved one would have earned if they survived the accident
These are just the common compensations that you’ll get. However, there are so many other compensations that need to be addressed too.
That’s why you need experienced attorneys that have been in this business long enough to know and understand your case to the core so that you can be fully compensated what you deserve.
How to Win a Wrongful Death Lawsuit
Wrongful death claims are not easy to deal with. They are won and lost according to the evidence presented to the jury or the judge. Your lawyer will have to prove that the accused party was responsible for the loss of your loved one.
This is the part where you need a Louisiana attorney to take care of your situation. Keep in mind that if your evidence is not anywhere close to being concrete evidence, the accused will walk free. This is why we strongly advice you get an experienced lawyer to help you win your case.
You can’t lose your loved one and fail to be compensated. This is why we are here for you.
A Louisiana wrongful death attorney from Smiley Law Firm will work hard to gather supporting evidence to prove your case by accessing photos, video footage, and any written material that shows the defendant neglected their duty of care.
What is a “Duty”?
Before we proceed, duty of care is a legal term that means the accused, or the defendant had the responsibility to safeguard the well-being of your loved one. A good example is every person on the road has a duty of care to all the other people on the road since they are supposed to obey all the traffic rules.
Remember that the defendant will have a lawyer by their side to represent them. Wrongful death lawsuits can be quite daunting.
Of course, the defendant’s lawyer will obviously come up with all the reasons under the sun to deny that his/her client had duty of care towards your loved one. And again, this is where the invaluable help of a Smiley Law Firm attorney comes in handy.
Once the court has established duty of care, your lawyer will then need to prove the breach of care; which shows that the defendant neglected the duty of keeping your loved one safe.
Depending on how your situation is, your lawyer will take his/her time to determine the best evidence to provide in court to prove that duty of care was breached.
An attorney will then be able to thoroughly investigate your case in order to come to win your case. This is why we always encourage people to file their wrongful death claim as early as possible so that your attorney has enough time to gather all the necessary information and evidence.
Wrongful Death Settlement vs A Lawsuit
Sometimes the offender will want to avoid the court to pay through a settlement. You’ll still need an attorney to do a thorough sweep on every corner of your situation to ensure that you are compensated the right amount.
After your attorney has established the right amount for you to be compensated, he or she will then negotiate with the defendant’s lawyer until they can come to an agreement that is acceptable to you.
This can be beneficial in that you can directly negotiate what you want to be compensated instead of having to go through a judge who will determine your compensation.
Defendants who choose to settle matters on a settlement basis do so to avoid the public trails that come along with solving cases in the court.
The good thing about having an experienced attorney is that they will advice you if you are getting fair compensation or whether to take the case to the court to be compensated what you deserve.
How Soon Should I file a Wrongful Death Lawsuit in Louisiana?
It’s important to grieve the loss of your loved one. However, it’s wise to act as fast as immediately. An experienced attorney knows what to do.
As soon as you have engaged him to work on your case, he’ll spring into action to fight for your compensation and let you mourn in peace.
There’s also a statute of limitations for filing a wrongful death claim. You can’t file for a wrongful death claim after the time period has expired.
The reason as to why we emphasize you act immediately is because it takes a lot of work to collect evidence. If you act immediately, your attorney has ample time to investigate any people involved while the event is still fresh in their minds.
As time goes by, memories can fade, and parties involved can misplace evidence that can easily get you the most amount of your compensation.
If you’ve have recently lost a loved one, we ask you not to delay. Reach out to a wrongful death attorney at Seth Smiley Law Firm so that we can discuss your lawsuit. Our lawyers have solved cases and have years of experience in helping families in Louisiana get the compensation they deserve for their injury claims.
Let us use our professional knowledge to help you build a strong case so that you can receive the right amount of compensation for your losses.
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