Law Offices of Ben Glen PC.

How Is The Amount Of Damages Determined In A Wrongful Death Case?


The amount of damages in a wrongful death claim can be agreed upon by the claimants through a settlement, resolved through mediation, arbitration or ultimately decided by a jury based on testimony and the persuasiveness of the claimant’s attorney. Wrongful death claimants are entitled to a variety of damages, including, but not limited to: the loss of the decedent’s love, society, affection, companionship, solace, and moral support, everything attendant to losing a parent, spouse, child, or other family member and its terrible consequences. Damages for lost financial support and future support are compensable. Also, damages for loss of services, advice, and training are compensable. Each case is different and each relationship with the decedent is different and it is important that the attorney work with the claimant or claimants to determine the full extent of the loss to each claimant to demonstrate and prove the full deserving compensation under the law. Other expenses, such as funeral and burial expenses are awardable, too. Damages for future economic losses are recoverable, but must be reduced to their present economic value.

Each claimant has a different relationship with the decedent and the damages need to be calculated accordingly. It is the attorney’s job to ferret out the intricacies of each relationship in connection with the various factors discussed above in determining proper compensation.

When insurance is the only economically feasible monetary compensation to pursue, as when the wrongdoer has little or no assets and there are no companies or other entities with other insurance or funds to cover a wrongful death, a division of those insurance proceeds has to be looked at carefully and with regard to each claimant’s losses. As discussed, some claimants may have much more of a loss than others; however, those losses to each claimant are, in part, subjective and one claimant may think another claimant’s losses/damages are much less or even insignificant compared to the other’s. When this occurs, an attorney has a conflict of interest and unless these claimants are agreeable to have the same attorney represent them, the attorney may not be able to represent all of the claimants. By having different attorneys, the claimant or claimants may have more assurance that their claim is being zealously pursued and that their claim is truly being maximized. Since each case is different and the total amount of money available through insurance or other means may be a limiting factor as to whether to obtain multiple attorneys, as it may not be economically feasible to do so.

Are Punitive Damages Ever Recoverable In Wrongful Death Cases?

Yes, punitive damages are recoverable in some wrongful death cases. They are far and few between thankfully, and that is when there is felony homicide involved. So if somebody commits a felony and in the commission of that felony ends up killing a claimant’s loved one, then the claimants of the decedent are able to pursue and obtain an award against the felony wrongdoer for punitive damages.

In the absence of a felony homicide, punitive damages are not available to the claimants in a wrongful death action. The law is harsh to victims in general, and to wrongful death victims specifically.

How Is A Wrongful Death Claim Proven?

What you need to prove is that there is a duty of a person, for example, to drive a car responsibly and according to law. Further, a claimant must prove that the wrongdoer breached a duty, and as a result of that breach, caused the death of the decedent. It is then incumbent upon the claimant to prove damages as I have discussed in other sections of this article.

Why Does Someone Need An Attorney To Prove A Wrongful Death Case?

Attorneys can usually get more money for claimant than if that claimant proceeded alone. It really depends on the circumstances and, as I must stress again, each case is different. The claimant is usually in emotional turmoil and may have trouble making economically rational decisions in regard to his or her claim. The claimant, with or without an attorney, usually must confront and fight against insurance companies, which represent the wrongdoers, for compensation. Again, these insurance companies are not in the business of charity or happily providing compensation to wrongful death victims. Insurance companies take just the opposite stance and it is their job to try to prevent each and every penny from being paid out from their coffers, regardless of the circumstances of the wrongful death and how terribly that wrongful death affects the family member claimants or other victims.

Insurance companies are happy to collect premiums, but when it comes to the task of paying on claims it is like pulling teeth to them – they are absolutely against it and will do almost anything not to do so or minimize the payout.

Tragically, back in 1988, a California Supreme Court decision was made in the case of Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287. Unbelievably, that case removed the wrongdoer’s insurance company’s duty to act in good faith towards the victims of the wrongdoer and further removed the burden and the duty of the wrongdoer’s insurance company to make a prompt and reasonable good faith settlement. Up until that case, under the California Insurance Code, it was the duty of the wrongdoer’s insurance company to make a reasonable and prompt settlement in all cases, when an insurance company insured a wrongdoer. The newly reconstituted Supreme Court, whose justices were then, in part, appointed by then Gov. Wilson, became a court with a majority of justices much more favorable to the concerns of the insurance companies, rather than the needs and concerns of claimants of wrongful death victims and injury victims.

So, that court reinterpreted the insurance code of California and decided that duties of good faith, fair dealing and providing a prompt and reasonable settlement applies only in cases when the claimant is making a claim against his or her own insurance company–when that claimant has a contractual relationship with his or her insurance company. This occurs in relatively rare matters, such as where there is an uninsured motorist and the claimant has to make a claim against his or her own insurance company– as there is no insurance to pursue on the part of the wrongdoer. The outcome of this decision has been more than tragic to all injury victims and in these wrongful death cases, the surviving family members or other claimants of the wrongful death decedent. One hopes that the legislature will one day change the law in this regard and return the burden of acting in good faith to the wrongdoer’s insurance company.

Therefore, wrongful death claimants are left with having to deal with insurance companies that feel free to essentially tell victims to take a flying leap. These wrongdoer’s insurance companies use different tactics when dealing with claimants directly: they may try to falsely act sweet and say to the wrongful death claimant, for example, “oh yes, you know we understand your tragic situation, so take $50,000 and you should realize this is great compensation for you, God bless you and have a great day,” when the case may be worth $500,000, $1 million, $5 million, $10 million or more – and when there is a great deal of insurance coverage beyond that $50,000 offer. That is the job of these insurance companies and the representatives – to save the company money as much money as possible and to absolutely pay as little as possible to claimants. They try to settle the wrongful death case very early on for some small amount of money and often times the wrongful death claimant does not realize how big a case he or she really has. Other insurance company representatives come off making the claimant feel as though there is an obligation on the claimant’s part to give the insurance company information, when there is no such duty, and try to intimidate the claimant. Unfortunately, in many cases, this actually works Attorneys who work in this field do know the value of these cases and will do what is necessary to battle these insurers, placing their clients on equal footing with the daunting size and resources of an insurance company, so as to maximize the claimant’s economic recovery.

For more information on Damages In A Wrongful Death Claim, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (877-236-4536) today.

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