When I was a rookie attorney, I handled my first wrongful death case. That case involved an engine part that came off a moving car and penetrated the windshield of a vehicle approaching in the opposite direction and hit a front seat passenger in the head killing her instantly.
Initially I had to do a lot of research to be able to understand what was involved with a wrongful death suit. After having initiated several of these cases, I can now state that wrongful death cases are not much different than a normal liability injury lawsuit with a few procedural exceptions.
WHO CAN FILE A WRONGFUL DEATH CLAIM?
Heirs and personal representatives can file a wrongful death lawsuit. An “heir” is anyone that can inherit from the decedent, if the decedent died without a will. This often includes the decedent’s surviving spouse or domestic partner, children, parents or brothers and sisters of the decedent. The right to file a wrongful death lawsuit is controlled by the laws of intestate succession NRS 134.030-NRS 134.210. For example, if there is a surviving spouse and children then NRS 134.040 would apply.
NRS 134.040 Surviving spouse and issue
- If the decedent leaves a surviving spouse and only one child, or the lawful issue of one child, the estate goes one-half to the surviving spouse and one-half to the child or the issue of the child.
- If the decedent leaves a surviving spouse and more than one child living, or a child and the lawful issue of one or more deceased children, the estate goes one-third to the surviving spouse and the remainder in equal shares to the children and the lawful issue of any deceased child by right of representation.
People who cannot file wrongful death suits are fiances, foster children, unadopted step children and unmarried partners, even if they are beneficiaries under the decedent’s will.
WHAT IS A WRONGFUL DEATH CASE?
Every person has the duty imposed by case law to abstain from injuring another person or his property.
A wrongful death case can be based upon: intentional conduct, negligence (not intentional conduct) or strict liability for ultra hazardous activities or defective products which cause a person’s death.
Therefore, a wrongful death case is a liability case that results in the death of the injured person.
Nevada’s has a wrongful death statute states as follows:
NRS 41.085 Heirs and Person representatives may maintain action.
- As used in this section, “heir” means a person who, under the laws of this State, would be entitled to succeed to the separate property of the decedent if the decedent had died intestate. The term does not include a person wo is deemed to be a killer of the decedent pursuant to chapter 41B of NRS, and such a person shall be deemed to have predeceased the decedent as set forth in NRS 41B.330.
- When the death of any person, whether or not a minor, is caused by the wrongful act or neglect of another, the heirs of the decedent and the personal representatives of the decedent may each maintain an action for damages against the person who caused the death, or if the wrongdoer is dead, against the wrongdoer’s personal representatives, whether the wrongdoer died before or after the death of the person injured by the wrongdoer. If any other person is responsible for the wrongful act or neglect, or if the wrongdoer is employed by another person who is responsible for the wrongdoer’s conduct, the action may be maintained against that other person, or if the other person is dead, against the other person’s personal representatives.
- An action brought by the heirs of the decedent pursuant to subsection 2 and the cause of action of that decedent brought or maintained by the decedent’s personal representatives which arose out of the same wrongful act or neglect may be joined.
- The heirs may prove their respective damages in the action brought pursuant to subsection 2 and the court or jury may award each person pecuniary damages for the person’s grief or sorrow, loss of probable support, companionship, society, comfort and consortium, and damages for pain, suffering or disfigurement of the decedent. The proceeds of any judgment for damages awarded under this subsection are not liable for any debt of the decedent.
- The damages recoverable by the personal representatives of a decedent on behalf of the decedent’s estate include:
- Any special damages, such as medical expenses, which the decedent incurred or sustained before the decedent’s death, and funeral expenses; and
- Any penalties, including, but not limited to, exemplary or punitive damages, that the decedent would have recovered if the decedent had lived, bu do not include damages for pain, suffering or disfigurement of the decedent. The proceeds of any judgment for damages awarded under this subsection are liable for the debts of the decedent unless exempted by law.
The Nevada legislature passed our wrongful death statute to compensate immediate family members for specific losses resulting from the death of a close relative and to provide financial support to widows and orphans of people killed by a wrongdoer’s actions.
Various statutes of limitation may apply to wrongful death claims. Generally, if the case is not filed within two (2) years of the date of death the plaintiffs will lose the right to file an action.
An individual’s financial compensation for wrongful death can include:
- Grief and sorrow;
- Loss of probable support;
- Loss of companionship, society, comfort and consortium; and
- Pain suffering and disfigurement of the decedent.
The decedent’s estate can recover for:
- Decedent’s medical expenses;
- Funeral expenses; and
- Punitive damages – for the egregious conduct of the defendant causing the decedent’s death.
PROCEDURAL EVOLUTION OF A WRONGFUL DEATH CASE
- Obtain copies of all official reports and photographic evidence related to the accident.
- If liability is not very clear, hire necessary experts to evaluate the liability causes of action (e.g. tire blow out case – hire an accident reconstruction expert and a tire expert).
- In the event that no formal probate is required on the decedent’s estate, appoint a Special Administrator for the Decedent Estate and publish a Notices to Creditors as required by probate law.
- Obtain any copies of the decedent’s medical bills and records and, if necessary, and hire a medical expert who can render opinions that the decedent’s cause of death was caused by the accident.
- Hire an economist to render opinions on the value of claims for probable support and the value of non-economic damages for grief, sorrow, etc.
- Submit a demand for settlement to any applicable liability insurance carrier.
- If the case doesn’t settle, file and serve a wrongful death suit within the applicable statute of limitations.
- If the case settles or goes to judgment and the decedent’s estate receives compensation, go back to probate and follow the required procedures to close out the decedent’s estate.
PARTING COMMENTS ON WRONGFUL DEATH
As you can see from this blog, wrongful death cases can be very expensive and time consuming. What needs to be done at the beginning of these cases is to determine how much insurance coverage is available to cover damages. Sometimes there may be multiple claimants (with each retaining separate counsel) when the decedent has a large family.
When liability insurance coverage is high, then the advance of expenses by the attorney may be justified. However, when the adverse party has limited coverage and limited assets, the decision must be made to accept or reject the minimum liability limits and pursue the individual or entity in litigation in an attempt to obtain judgment against the adverse party’s assets. There is nothing that prevents the adverse party or entity to file bankruptcy in an effort to extinguish any claim or judgment against them.
Sometimes on auto accident wrongful death cases we can accept minimum auto insurance liability limits, so that we can pursue first party coverages such as underinsured motorists coverages to provide further compensation to our clients.
The reality of wrongful death claims is that in many of these cases there is insufficient insurance to fully compensate the heirs and the decedent’s estate for their damages.
Remember that criminal charges against the adverse party causing the wrongful death are separate from civil actions for wrongful death. O.J. Simpson was acquitted of murder charges for the death of his wife Nicole Brown because the standard of proof in criminal cases is beyond a reasonable doubt. But, Nicole Brown’s family prevailed in their civil suit against Simpson where the standard of proof was the preponderance of evidence, a much lower standard.
Hopefully, this blog provided you with a better understanding of what is involved with a wrongful death case in Nevada, in the event that you have the misfortune to be directly affected by one.