The death of a loved one is a traumatic event. The grief is compounded when the death was preventable and due to someone’s negligent or intentional wrong act. In addition to the sorrow felt over the missing person, if you were dependent on that person for financial support, you may find yourself struggling to pay your bills.
You may feel helpless and concerned about your own future. Wrongful death attorney Paul Giannetti has the compassion and the skill you need at a time like this to guide you through the legal process of a wrongful death claim.
What Is a Wrongful Death Claim?
Whenever anyone dies because of the negligent or intentional act of another, New York state law allows the personal representative of those eligible for compensation to bring an action for damages on behalf of the survivors.
The claim must be filed within two years of the death of the loved one. If the act was intentional and a criminal action is taken, the time is extended until one year after the termination of the criminal case.
One well-known example of this happened a few years ago in the O.J. Simpson case. After he was acquitted of killing his wife and her friend, the family of his victims brought a wrongful death action and won their case.
The wrongful death action is allowed since it is a civil case, and although the criminal case requires proof beyond a reasonable doubt, the civil case requires proof by a preponderance of the evidence. This essentially means it was “more likely than not” that the defendant intentionally killed the victim.
In order to prevail on the wrongful death claim, the same elements that the deceased would have needed to prove to collect on a personal injury claim if he or she had lived must be proven in the wrongful death action claim. If you prevail on your lawsuit or are able to effectuate a settlement, your damages will be divided into economic and noneconomic ones. In rare cases, you may be able to collect punitive damages, which are designed to punish defendants for their particularly bad behavior.
Economic damages are designed to reimburse you for out-of-pocket expenses you incurred. These include:
- Medical expenses your loved one accumulated prior to his or her death.
- All costs related to the funeral or other burial expenses.
- Lost wages of the decedent upon which the loved ones were dependent.
- Loss of future earning potential.
- Cost of administration of the estate.
There may be other tangible losses your attorney can help you identify.
Factors Courts Consider in Determining Amount of Economic Damages
Factors courts or insurers will consider when evaluating the amount of damages to award due to lost wages and loss of future earning potential and other economic damages include:
- The age of the deceased.
- Was the deceased in good health at the time the negligent or intentional act caused the death?
- What was the income of the deceased at the time of death.
- What was the person’s future earning capacity?
- What was the value of lost benefits, such as retirement income, future pension, and health insurance benefits that were available to dependents?
- The age of the decedent’s dependents.
- What was the contribution of the decedent to the dependents or other family members?
Value of Noneconomic Damages
Noneconomic damages are those which are actually intangible. For example, medical expenses are easily evaluated. Add up the bills and that is the amount of the economic damage. Noneconomic losses are those which arise from not having the person around anymore and the damages you incur from that loss. Some examples are:
- Suffering the person went through just prior to his or her death. Damages may be awarded based not only on the physical pain the decedent suffered, but for the psychological pain the person suffered if he or she was aware death was imminent and the fear such knowledge may have caused them.
- Damages for the emotional pain and suffering you experienced and are experiencing due to the loss of your loved one.
- The loss of the companionship of your loved one. This may include the loss of the help of parenting when a spouse dies.
- Spouses may collect for the loss of consortium.
These are rarely awarded in wrongful death actions, but there are exceptions. For example, in the O.J. Simpson case, the jury awarded the families of the victims $25 million in punitive damages. The purpose of punitive damages is to punish defendants for their egregious conduct.
If you have a loved one who died due to the negligence of another, contact Albany wrongful death attorney Paul Giannetti for a free consultation.