Who Can File a Wrongful Death Suit?

Losing a loved one in an accident is never easy, especially if the accident was fully avoidable. When individuals behave negligently, they may cut another person’s life short in an instant. If that happens, the deceased individual’s family members can pursue monetary compensation from the at-fault individual’s insurance company via a wrongful death claim. If the insurance company refuses to offer favorable compensation, the survivors—or a personal representative of the decedent’s estate—can file a wrongful death lawsuit for damages.

Although money can never come close to replacing a lost loved one, it can help to bring about a sense of justice, fairness, and closure for you and your family. If you lost a loved one in an accident that resulted from negligence, you should speak with a knowledgeable wrongful death lawyer in your area as soon as possible. Your lawyer can meet with you to discuss the legal options available and, if applicable, file a claim or lawsuit on your behalf.

For a free legal consultation, call 631-239-3965

Accidents that Lead to Wrongful Death Claims

Several types of accidents can lead to fatal injuries that, in turn, can result in a wrongful death claim.

Some common accidents that cause fatalities include:

  • Motor vehicle crashes – Motor vehicle crashes usually happen because a driver behaves negligently under the circumstances. For example, the at-fault driver might have been speeding, engaging in distracted driving, exhibiting road rage, or operating their vehicle while under the influence of alcohol or drugs. This can be particularly problematic since alcohol impairs a driver’s ability to operate their vehicle safely. It can cause blurred vision, inhibit their concentration, and slow their reaction time, preventing them from stopping their vehicle in time to avoid a crash. Tractor-trailers and big rig operators can also cause accidents under many of the same circumstances as car drivers. In addition to negligent driving, truck drivers may cause a fatal accident if they fail to properly load their cargo onto the truck and disregard state and federal motor carrier regulations. When accidents occur at high speeds, fatalities are more likely.
  • Defective products – Product manufacturers, designers, and distributors must act with reasonable care. Specifically, manufacturers must not take shortcuts in the process and have a duty to design their products reasonably and safely. They must also ensure that their products contain the proper warnings for consumers. If a product malfunctions or explodes when a consumer uses it properly—and a fatal injury occurs—then the surviving family members can bring a claim or file a lawsuit against any entity in the product distribution chain.
  • Swimming pool and amusement park accidents – Swimming pool and amusement park owners owe their patrons a duty of reasonable care. Specifically, they must ensure that no serious defects exist in their swimming areas and on their rides. They must also inspect their premises regularly for known and unknown dangerous conditions and perform the necessary inspections and repair work regularly. If they come across a premises defect, they must promptly repair or warn about it. If not, and a fatal accident occurs, they can be liable.
  • Boating accidents – Just like motor vehicle drivers must operate their vehicles safely, so must boat operators. They have to follow the proper speed limits and safety regulations, maintain reasonably safe watercraft, and not operate their boats while intoxicated. When they violate this duty of care, and an accident occurs in which someone suffers an injury or death, they and their insurers are responsible.
  • Premises accidents – Premises owners must maintain safe properties and regularly inspect them for the benefit of business guests. If they come across a defect or hazard, they must promptly warn about or repair it. If they don’t and a fatal accident occurs on the premises, the owner can be responsible for any damages. Premises accidents may result from property defects and negligent security issues, such as where sufficient security cameras and personnel are not present on the premises at a given time.
  • Medical negligence – Healthcare providers, including doctors and nurses, owe their patients a very high duty of care. A doctor must follow the standard of a hypothetical reasonable doctor acting under the same or similar circumstances. Specialists, such as orthopedic doctors, must typically follow a national standard of care. When a healthcare provider botches a medical procedure, misses a diagnosis, fails to diagnose a patient’s condition, or leaves something inside a patient’s body after a procedure—and the patient dies as a result—they and their insurance companies can be responsible.

If your loved one suffered fatal injuries in one of these accidents, you should immediately contact an experienced wrongful death lawyer in your area. Your lawyer can determine if you can file a wrongful death claim and if so, can promptly begin the claims-filing process on your behalf. Your lawyer will then work to help you maximize the compensation you recover—either through a favorable settlement or litigation in court.

Setting up an Estate on Your Deceased Loved One’s Behalf

Some jurisdictions require that the surviving individual’s family members open an estate before filing a wrongful death claim. This typically happens through the probate court for the jurisdiction where the accident victim died. Once the court opens an estate, it will name a personal representative. The personal representative is then responsible for filing the wrongful death claim or lawsuit and pursuing damages on behalf of the estate.

In other jurisdictions, the deceased individual’s loved ones can collectively file a wrongful death claim with the at-fault person’s insurance company—or a lawsuit in the court system.

Potential Wrongful Death Damages

To recover wrongful death damages as part of a claim or lawsuit, you will need to establish all of the legal elements of the claim. Specifically, you must demonstrate that your loved one’s death occurred because of an accident that resulted from someone else’s negligence.

In terms of damages, the estate can recover compensation for the decedent’s funeral and burial expenses. In addition, the wrongful death claimant can recover compensation for the loss of the decedent’s future earnings if the surviving family members depended upon those earnings for income. Finally, the estate can recover compensation for the loss of the deceased individual’s future care, comfort, and companionship, due to their premature death.

The insurance company is not your friend when settling or litigating a wrongful death claim. They are your direct adversary. Insurance companies are big businesses, and adjusters will do everything they can to save the insurance company money.

This often means lowballing settlement offers and refusing to offer full and fair compensation.

When that happens, your lawyer can file a wrongful death lawsuit in the court system and pursue damages that way. A wrongful death lawyer in your area can review the circumstances of the accident with you and help you file your claim or lawsuit. Your lawyer can also represent you during settlement negotiations with the insurance company adjuster and attend all court hearings with you. They will work hard to maximize the compensation you or the estate receive for the wrongful death claim.

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Who Has the Burden of Proof in a Wrongful Death Action?

Wrongful death claims and lawsuits can be difficult to prove since the accident victim is no longer alive to testify if the matter goes to court. Even though the accident victim is deceased in a wrongful death claim, the surviving family members—or the estate’s personal representative—have the legal burden of proof.

Specifically, they have to demonstrate:

  • That the at-fault individual or entity owed the deceased individual a duty of care
  • That the at-fault party violated that duty in some way, such as by violating a traffic law, negligently designing a product, or failing to maintain their premises in the proper manner
  • That the at-fault party’s violation caused the accident
  • That the accident was a cause of the victim’s death

Sometimes, a wrongful death lawyer might need to retain an expert to prove these legal elements. For example, if the insurance company disputes responsibility for the accident, an accident reconstructionist can piece together what happens and place the blame squarely upon the other individual. Similarly, a medical expert can establish medical causation and prove that the accident victim’s premature death directly resulted from the accident.

An experienced wrongful death lawyer in your area can help you prove the legal elements of your claim and recover the damages you need.

Filing a Wrongful Death Claim with the Insurance Company

Before filing a lawsuit in court, a decedent’s loved ones—or the personal representative of the decedent’s estate—will need to file a wrongful death claim. In most instances, the survivors will file their claim with the at-fault party’s insurance company.

When filing a claim, the wrongful death lawyer will submit copies of the deceased accident victim’s medical records, medical bills, photographs of property damage, photographs of injuries, death certificates, and any estate papers. If the insurance company accepts fault for the accident, then the parties may begin their settlement discussions.

In a wrongful death claim, the insurance company adjuster will do everything they can to undervalue the claim and avoid paying out damages. After all, the more the insurance company pays, the less money they get to keep in-house. A skilled wrongful death lawyer can negotiate with the insurance company adjuster aggressively. If the adjuster still refuses to offer favorable compensation, the lawyer can threaten litigation in the court system.

Filing a Wrongful Death Lawsuit with the Court

When the responsible party’s insurer disputes fault for an accident, your lawyer can file a wrongful death lawsuit seeking damages. Even after filing suit, the parties can still engage in settlement discussions and possibly resolve the case without further litigation. If the matter does not settle, it will proceed forward in the court system.

During the litigation stage of a wrongful death claim:

  • A defense attorney will enter an appearance in the case on behalf of the at-fault individual or entity.
  • The parties will exchange answers to written questions, called interrogatories, and produce documents.
  • The defense lawyer may take the estate personal representative’s discovery deposition.
  • The parties may attend a court-ordered mediation session or settlement conference and attempt to resolve their case again.
  • If the case does not settle, the parties take the case to trial, where a jury decides all disputed issues.

As an alternative to trial, the parties may consider alternative dispute resolution proceedings, such as mediation or binding arbitration. Your lawyer can assist you during every stage of the litigation and work to pursue the damages you need.

Statute of Limitations for a Wrongful Death Lawsuit

A statute of limitations is the deadline by which a claimant must file a wrongful death lawsuit. In some jurisdictions, the period is as short as one or two years, while other jurisdictions allow more time. Knowing the statute of limitations deadline for your wrongful death claim is extremely important.

If you file your wrongful death lawsuit even one day late, in almost all circumstances, you will not recover any damages. If your loved one passed away to injuries they suffered in an accident, you should contact an experienced wrongful death lawyer in your area as soon as possible.

Your lawyer can first determine if you are eligible to file a wrongful death claim or lawsuit based on your circumstances. If you are, your lawyer can promptly start the claims-filing process on your behalf and work to recover the damages you deserve.

Contact a Wrongful Death Lawyer Near You Today

Michael Gluck
Wrongful Death Lawyer, Michael Gluck

If someone you love passed away in an accident that resulted from another person’s negligence, you have legal rights and options open to you. First, you should speak with a knowledgeable and compassionate wrongful death lawyer in your area today. Your lawyer can help you file the wrongful death claim or lawsuit on behalf of yourself or your loved one’s estate. They can help you recover the compensation you need to bring justice and closure.

Filed Under: Wrongful Death

For a free legal consultation, call 516-451-7900

Practice Areas

Our Long Island Injury Lawyers Have Experience In

Truck Accidents
Accidents on the highways can be lethal events
Bicycle Accidents
Riding a bicycle should not be unsafe
Car Accidents
If you have been seriously injured, call our firm
Motorcycle Accidents
Motorcycle accidents often result in serious injury
Medical Malpractice
Medical mistakes can cause death ruin lives
Wrongful Death
When negligence results in the death of a loved me
Premises Liability
When hurt in a location, someone has to take responsibility
Brain Injury
Brain injuries can have long term severe effects
Dog Bites
Dog bites can cause serious injury


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