QUESTIONS & ANSWERS
Wrongful Death FAQs
What are the elements of a wrongful
death claim?
When must a lawsuit for Wrongful Death be
filed?
Who can file a wrongful death claim?
Who receives the recovery of the Wrongful
Death damages?
How are the future damages calculated and
what is "Present Value?"
When are Punitive Damages available?
What are the elements of a
wrongful death claim?
Like other personal injury claims, the plaintiff (the
party bringing the claim or lawsuit) has the
"burden of proof." This means that there must
be evidence tending to establish each of the elements
necessary to legally prove the claim. These include
proof that: (1) the death was caused, in whole or in
part, by the conduct of the defendant; (2) the defendant
was negligent or otherwise liable for the victim's
death; (3) there are one or more surviving beneficiaries
(more on that, later); and (4) the victim and/or
survivors have incurred one or more of the elements of
damages listed above.
It is necessary to prove not only that the defendant
was negligent or otherwise legally at fault, but also
that the defendant's conduct was the proximate cause of
the death of the victim. "Proximate cause" is
that cause, but for which, the victim would not have
been killed.
Thus, where a defendant negligently runs a stop sign
causing a collision, the victim dies of wounds clearly
suffered in the collision, the first two elements are
easily proved. However, where the victim subsequently
dies from a cause unrelated to the collision, there is
no claim or action for wrongful death damages.
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When must a lawsuit for Wrongful
Death be filed?
Each state has its own "statue of
limitations", which defines when a lawsuit must be
filed. The failure to resolve a claim or file a lawsuit
before the end of this limitations period will forever
bar the right to recover at all, with few exceptions.
Even an otherwise valid claim may be barred if filed
after the statute of limitations has run. It is
therefore important that you consult a qualified
personal injury lawyer at your earliest opportunity in
order to preserve these important rights. Early legal
consultation can also help preserve evidence, or locate
witnesses, that may be needed for a successful claim.
In North Carolina, there are several limitations
periods which have a bearing on wrongful death claims.
In general, a wrongful death claim must be filed
within two (2) years of the date of death of the victim.
However, in cases where the victim is injured, but does
not die within two (2) years of the date of the accident
or other event causing injury, the claim must be filed
within the time allowed for the victim to have filed a
personal injury claim, usually three (3) years from the
date of accident or other injury-causing event.
Where the fatal injury was caused by a defective
product (products liability) or by medical negligence
(malpractice), other limitations periods, called
statutes of repose, may also operate to bar the claim.
If the fatal injury was caused by a defective
product, the claim must be brought within six (6) years
of the date the product was first sold for use or
consumption. Thus, if the product in question was more
than six years old when the fatal injury occurred, a
claim can be barred by the statute of repose even though
it is brought or filed within the two years statute of
limitations.
If the fatal injury was caused by medical negligence,
the two-year limitations period from the date of death
will apply. However, if the victim lingers, the claim
must be brought within four (4) years of the last act of
the negligent health care provider. Thus, where a
negligent doctor continued to treat the victim for one
year following the negligent act or omission giving rise
to the claim, after which the victim died, the claim
must be brought within two years of the date of death,
but not longer than four years from the last date
treatment was provided.
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Who can file a wrongful death
claim?
In North Carolina, no matter who the beneficiaries or
survivors are, only the "personal
representative" (Administrator or Executor of the
estate of the victim) may bring the claim. If the victim
dies "intestate" (without a will), the Court
will appoint an administrator of the estate who has the
exclusive right to file the claim. If the victim dies
"testate" (with a will), the Executor named in
the will, once approved by the Clerk of Court, has the
exclusive right to file the claim.
There must be an administration of the estate of the
victim, even if the victim died without assets of any
kind.
In the absence of a will, the law establishes
priorities as to who is entitled to serve as personal
representative. A person qualified to serve may not want
to, and may "renounce" his or her right to
serve in favor of someone with equal legal standing or,
if there is no such person, someone next in line of
priority.
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Who receives the recovery of the
Wrongful Death damages?
Even if the victim died with a will, the persons who
actually receive the monetary damages recovered are the
persons who would inherit had the victim died without a
will, as determined by the North Carolina Intestate
Succession Act, NORTH CAROLINA GENERAL STATUTE §§29-1,
et seq. In this, the law makes no distinction between
heirs who were particularly close to the deceased and
those with whom the deceased may have had strained
relations.
In the usual case, survivors include a spouse and one
or more children. In the case of a spouse and one child,
each gets one-half of the recovery. If there are two or
more children, the spouse gets one-third of the recovery
and the children share the remainder equally. If there
is no spouse and/or no children, the law then looks to
the surviving next of kin. A qualified lawyer should be
consulted if there is a question about who is entitled
to share in the recovery.
Wrongful death damages recovered are NOT assets of
the estate of the decedent and, with the exceptions set
out in the Wrongful Death Act, are not subject to being
used to pay the debts of the victim. The exceptions to
this rule, provided by the Wrongful Death Act, are some
of the medical expenses associated with the fatal injury
or illness and reasonable funeral expenses.
If any of the survivors who are entitled to receive a
wrongful death settlement are minors, or if all adult
beneficiaries do not agree to the settlement, then the
personal representative must seek the approval of the
Court before finalizing any settlement.
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How are the future damages
calculated and what is "Present Value?"
Recovery of wrongful death damages, whether by
settlement or court judgment, is calculated at one time
and must include not only those losses and damages
incurred as of the date of resolution of the claim, but
also those damages to be suffered in the future because
of the death of the decedent.
As seen above, some of the elements of damages
include the loss of these "future damages,"
which must be reduced to their "present
value." This law envisions that a dollar received
today is worth more than a dollar received ten years
from today.
The General Statutes contain a life expectancy or
mortuary table which has the average life expectancies
of persons having reached certain ages. The shortest
applicable life expectancy is used. Thus, if the
decedent was older than his or her survivors, his or her
life expectancy will be used. However, if the situation
is reversed, as where the decedent was a child survived
by one or more parents, then the life expectancies of
the parents or survivors will be used.
The decedent's "work life expectancy" will
be used to determine the value of his or her lost future
income. This is typically the difference between the age
of the victim at death and the age at which he or she
would normally be expected to retire or stop working.
The decedent's life expectancy is used to determine over
what period of time personal services would have been
rendered by him or her to the beneficiaries. With aging,
these services change.
There are several ways to reduce these future damages
to present value in today's dollars. Usually, this
involves computation of the stream of income in the
future, taking into account such things as reasonably
expected pay raises, promotions, union contracts,
benefits, etc. This stream of income is then reduced,
using the known effects of inflation, personal
consumption, etc. Technically, the "present
value" of future losses is the amount of money it
would take, in today's dollars, to replace the lost
future income or services and create a new stream of
income over the applicable life expectancy so that,
ideally, the beneficiaries have, in money, that which
they have lost due to the wrongful death.
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When are Punitive Damages
available?
Punitive damages are not awarded to compensate anyone.
Rather, they are used to punish the wrongdoer and to set
an example to others that certain conduct will not be
tolerated. As a result, punitive damages are not
recovered unless there is proof that the defendant's
misconduct amounted to malicious or willful or wanton,
negligence.
Punitive damages have been greatly restricted in
North Carolina.
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For more information, please see our
Wrongful
Death page.
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