Wrongful Death Case: Who May Sue?
What is a Wrongful Death Claim?
A wrongful death claim exists when a person dies due to the legal fault of another person. The right to file a lawsuit for wrongful death is a relatively new concept. “Common Law” (the laws brought to the United States from England) did not allow this kind of lawsuit. But during the last century, state and federal courts created the right to bring a wrongful death action. Every state in this country now has some kind of wrongful death law.
Wrongful death claims involve all types of fatal accidents from simple car accidents to complicated medical malpractice or product liability cases. Persons, companies, and governmental agencies can be legally at fault for acting negligently (failing to act as a reasonable person would have acted), for failing to take actions required by law and for acting intentionally.
Missouri Wrongful Death Statute
Missouri classifies the individuals legally entitled to pursue a wrongful death case into classes. Generally speaking, “class 1″ persons (husband; wife; children, parents) are entitled to bring a claim for the loss of a family member. “Class 2″ members (brother; sister) cannot bring a case unless there are no surviving “class 1″ members. If the person who was killed was not survived by any immediate family members, the Missouri Statute follows the rules of lineal descent and requires the appointment of a plaintiff ad litem.
A plaintiff ad litem is the third class of descendants that can file a wrongful death claim on behalf of a deceased person. A plaintiff ad litem is an individual that is appointed by the court, and can only be appointed if there are no individuals in class 1 or class 2. This means that if the other classes of relatives aren’t living, are minors, etc. a plaintiff ad litem will be appointed by the court. Often, a plaintiff ad litem may be an aunt, uncle, or some other distant relative.
The Missouri Wrongful Death Statute is forth in 537.080. 1. which states:
Action for wrongful death – who may sue – limitation
537.080. 1. Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstance which, if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party who, or the corporation which, would have been liable if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured, which damages may be sued for:
(1) By the spouse or children or the surviving lineal descendants of any deceased children, natural or adopted, legitimate or illegitimate, or by the father or mother of the deceased, natural or adoptive;
(2) If there be no persons in class (1) entitled to bring the action, then by the brother or sister of the deceased, or their descendants, who can establish his or her right to those damages set out in section 537.090 because of the death;
(3) If there be no persons in class (1) or (2) entitled to bring the action, then by a plaintiff ad litem. Such plaintiff ad litem shall be appointed by the court having jurisdiction over the action for damages provided in this section upon application of some person entitled to share in the proceeds of such action. Such plaintiff ad litem shall be some suitable person competent to prosecute such action and whose appointment is requested on behalf of those persons entitled to share in the proceeds of such action. Such court may, in its discretion, require that such plaintiff ad litem give bond for the faithful performance of his duties.
2. Only one action may be brought under this section against any one defendant for the death of any one person.
Damages to be determined by jury – factors to be considered
537.090. In every action brought under section 537.080, the trier of the facts may give to the party or parties entitled thereto such damages as the trier of the facts may deem fair and just for the death and loss thus occasioned, having regard to the pecuniary losses suffered by reason of the death, funeral expenses, and the reasonable value of the services, consortium, companionship, comfort, instruction, guidance, counsel, training, and support of which those on whose behalf suit may be brought have been deprived by reason of such death and without limiting such damages to those which would be sustained prior to attaining the age of majority by the deceased or by the person suffering any such loss. In addition, the trier of the facts may award such damages as the deceased may have suffered between the time of injury and the time of death and for the recovery of which the deceased might have maintained an action had death not ensued. The mitigating or aggravating circumstances attending the death may be considered by the trier of the facts, but damages for grief and bereavement by reason of the death shall not be recoverable. If the deceased was not employed full time and was at least fifty percent responsible for the care of one or more minors or disabled persons, or persons over sixty-five years of age, there shall be a rebuttable presumption that the value of the care provided, regardless of the number of persons cared for, is equal to one hundred and ten percent of the state average weekly wage, as computed under section 287.250. If the deceased is under the age of eighteen, there shall be a rebuttable presumption that the annual pecuniary losses suffered by reason of the death shall be calculated based on the annual income of the deceased’s parents, provided that if the deceased has only one parent earning income, then the calculation shall be based on such income, but if the deceased had two parents earning income, then the calculation shall be based on the average of the two incomes.
Fortunately Missouri does not have any damage caps applicable to wrongful death cases (unless the wrongful death is caused by medical malpractice). Kansas, however, has a $250,000 cap for non-pecuniary losses. Essentially this means that past and future medical expenses and lost wages are not capped, but the other elements of damages may be subject to the cap.
Kansas Wrongful Death Statute
- 60-1901: Cause of action. If the death of a person is caused by the wrongful act or omission of another, an action may be maintained for the damages resulting therefrom if the former might have maintained the action had he or she lived, in accordance with the provisions of this article, against the wrongdoer, or his or her personal representative if he or she is deceased. History: L. 1963, ch. 303, 60-1901; Jan. 1, 1964.
- 60-1902: Plaintiff. The action may be commenced by any one of the heirs at law of the deceased who has sustained a loss by reason of the death. Any heir who does not join as a party plaintiff in the original action but who claims to have been damaged by reason of the death shall be permitted to intervene therein. The action shall be for the exclusive benefit of all of the heirs who has sustained a loss regardless or whether they all join or intervene therein, but the amounts of their respective recoveries shall be in accordance with the subsequent provisions of this article. History: L. 1963, ch. 303, 60-1902; Jan. 1, 1964.
- 60-1903: Amount of damages; jury instructions; itemized verdict. (a) In any wrongful death action, the court or jury may award such damages as are found to be fair and just under all the facts and circumstances, but the damages, other than pecuniary loss sustained by an heir at law, cannot exceed in the aggregate the sum of $250,000 and costs. (b) If a wrongful death action is to a jury, the court shall not instruct the jury on the monetary limitation imposed by subsection (a) upon recovery of damages for nonpecuniary loss. If the jury verdict results in an award of damages for nonpecuniary loss which, after deduction of any amounts pursuant to K.S.A. 60-258a and amendments thereto, exceeds the limitation of subsection (a), the court shall enter judgment for damages of $250,000 for nonpecuniary loss.(c) In any wrongful death action, the verdict shall be itemized by the trier of fact to reflect the amounts, if any, awarded for:(1) Nonpecuniary damages;(2) expenses for the care of the deceased caused by the injury; and(3) pecuniary damages other than those itemized under subsection (c)(2).(d) Where applicable, the amounts required to be itemized pursuant to subsections (c)(1) and (c)(3) shall be further itemized by the trier of fact to reflect those amounts awarded for injuries and losses sustained to date and those awarded for injuries and losses reasonably expected to be sustained in the future.(e) In any wrongful death action, the trial court shall instruct the jury only on those items of damage upon which there is some evidence to base an award.History: L. 1963, ch. 303, 60-1903; L. 1967, ch. 329, § 1; L. 1970, ch. 241, § 1; L. 1975, ch. 303, § 2; L. 1984, ch. 214, § 1; L. 1987, ch. 224, § 2; L. 1998, ch. 68, § 1; July 1.
- 60-1904: Elements of damage. (a) Damages may be recovered for, but are not limited to: (1) Mental anguish, suffering or bereavement;(2) loss of society, companionship, comfort or protection;(3) loss of marital care, attention, advice or counsel;(4) loss of filial care or attention;(5) loss of parental care, training, guidance or education; and(6) reasonable funeral expenses for the deceased.(b) If no probate administration for the estate of the deceased has been commenced, expenses for the care of the deceased which resulted from the wrongful act may also be recovered by any one of the heirs who paid or became liable for them. Those expenses and any amount recovered for funeral expenses shall not be included in the limitation of K.S.A. 60-1903 and amendments thereto.History: L. 1963, ch. 303, 60-1904; L. 1984, ch. 214, § 2; July 1.
- 60-1905: Apportionment of recovery. The net amount recovered in any such action, after the allowance by the judge of costs and reasonable attorneys fees to the attorneys for the plaintiffs, in accordance with the services performed by each if there be more than one, shall be apportioned by the judge upon a hearing, with reasonable notice to all of the known heirs having an interest therein, such notice to be given in such manner as the judge shall direct. The apportionment shall be in proportion to the loss sustained by each of the heirs, and all heirs known to have sustained a loss shall share in such apportionment regardless of whether they joined or intervened in the action; but in the absence of fraud, no person who failed to join or intervene in the action may claim any error in such apportionment after the order shall have been entered and the funds distributed pursuant thereto.
Wrongful Death case can be quite complicated and it is important to hire an attorney that is experienced in handling death cases. Attorney Brian Amick has collected tens of million of dollars on behalf of his client for the death of their loved ones. If you have a potential wrongful death case, contact us today for a free case review.