Learn what damages are available to you and your family, and how they’ll be distributed
Wrongful death claims are an important component of the justice system when families are impacted by the death of a loved one. Any legal situation can be complicated, and families often don’t know where to turn initially for possible financial recovery. This is especially true when fatalities happen accidentally and unexpectedly. All affected families will have questions, including what to do legally with respect to financial damage.
These complex cases typically require the expertise of a wrongful death lawyer because the laws are very specific and they can be strongly contested by the defending party. Companies and corporations could be also held liable for wrongful death just as well as individuals after a fatal injury. An experienced attorney will know how to build a case for maximum damages.
Economic and non-economic wrongful death damages
Wrongful death claim damages come in 2 primary types: economic and non-economic.
Economic damages, also commonly called “special damages,” are elements of the claim that can be quantified in absolute dollar amounts. These items include financial recovery for medical bills, funeral expenses, lost physical property and other exact-value documented expenses.
Recovery for pain and suffering can also be included in the claim when the decedent did not die immediately after being injured. This is a common element of many wrongful death claims, and each case is determined by the particular material case facts. Awards for these “general damages” stemming from ongoing impacts of the injury are considered non-economic and typically determined using an established calculation method.
Survival action claim damages
Georgia state law allows for 2 separate legal claims in wrongful death situations. The first is the estate claim for financial recovery regarding specific items such as medical bills, funeral and burial cost and payment for lost wages (when they apply). Property damage recovery applies in auto accident cases as well. These are all considered economic damages.
The estate claim includes the amount allowed for non-economic general damages, all of which are considered the property of the estate and subject to the probate process. Creditors may come forward and claim a portion of this amount during the probate process, which is paid in priority order as assigned by the probate court.
Additionally, punitive damages can also be awarded when a case goes to trial and the victim’s attorney can prove gross negligence to a sympathetic jury. This possibility is often why a plaintiff attorney will want to try a case. Defendants typically want a case tried when there are mitigating factors such as a high comparative negligence percentage assigned to the claimant victim.
Full value of life claim
The full value of life claim is assigned as the property of the family and can be paid on a court-ordered schedule based on each party to the lawsuit. There are specific rules regarding who can file this claim, with the current legal spouse of the decedent being automatically assigned (when it applies).
Those who are victims of wrongful death and are unmarried will have standing transferred to their surviving children next. Those with no children will be represented by the parents if they are still living. Children from previous marriages or relationships may also be eligible to file a claim and can retain their own legal counsel. Next in line for the standing to sue would be siblings or the estate representative, including an authorized attorney.
The court determines how the proceeds of the lawsuit will be dispersed, including the potential holding of certain resources until underage dependents turn 18 years of age. One-third of the award automatically goes to the surviving spouse.
These settlement damages include the full value of the decedent’s life and other elements such as:
- Loss of future financial support
- Loss of consortium
- Loss of the relationship with a parent
- Mental and emotional anguish
Punitive damages are not assigned in the full value of life claim; they are generally reserved for the estate claim that is attachable by creditors in the probate process. However, non-economic general damages are also a component of the full life value claim for the family and the possibility of punitive damages in the estate claim can still be solid leverage when the victim’s attorney is successful in brokering a settlement to avoid a full trial. Proceeds from the full value of life claim are the property of the family and cannot be attached by creditors.
Negligence is an issue in all Georgia personal injury cases, including wrongful death. This is important in auto accident cases or certain premises liability cases resulting in death. The Georgia law stipulates that successful claimants may only have a 49 percent or less comparative negligence assignment with respect to causing the injury themselves.
What this means is that a 50-50 accident victim could be denied an estate claim as well as restrict the family from filing a wrongful death action. This is usually why an insurance company or defendant will fight a claim all of the way through a trial in hopes of a 50-50 determination from the jury. The determined percentage is used to discount the total amount of the estate claim at least, which can in turn impact the full value of life claim for the family.
This potential alone means that the choice of legal counsel in Georgia is a serious decision. It is always best to select an aggressive and compassionate attorney with an established track record of success who will fight for all family rights to financial compensation. The attorney you choose makes a difference, and that difference maker in Georgia is Westmoreland, Patterson, Moseley & Hinson.