Johns Creek Wrongful Death Lawyer
A wrongful death claim is brought by the decedent’s surviving relatives when the decedent’s death was caused by the negligent, intentional or criminal act of another person or entity. A wrongful death claim can be brought in any kind of personal injury case, such as a car accident, bicycle accident, apartment shooting, or even homicide. The death of a loved one can be overwhelming and you will most likely have questions. Reach out to a Johns Creek wrongful death attorney to get the answers you need in this difficult time.
There are two kinds of wrongful death claims that can be brought in any death case. One is brought by the decedent’s survivors, usually the spouse or by the children if the decedent was no longer married or the spouse predeceased the decedent. The other type, called an estate claim, is brought by the estate. There are differences in who can bring these respective claims and in the damages that can be sought and obtained.
These types of claims should only be handled by a knowledgeable Johns Creek wrongful death lawyer who can deal with any liability issues and who understands the interplay between the two types of claims.
Wrongful Death Claim by Survivors
Who Can Bring the Lawsuit?
A wrongful death action is brought pursuant to O.C.G.A. § 51-4-2(a) by either of the following:
- If there are no surviving children, the spouse may seek and retain the entire proceeds of any settlement or award. If there are children, the spouse acts on behalf of him or herself and for the children.
- If no surviving spouse, then the children may bring the lawsuit and divide the award or settlement evenly among themselves.
- If no spouse or children, the parent or parents may bring the lawsuit.
A wrongful death claim has two types of damages—tangible and intangible.
Tangible damages are all economic losses sustained by the decedent. This generally includes the income that the decedent would have earned but for his/her death. This can be measured by what the decedent was earning at the time of death and multiplied by the number of working years left. It does consider any possible raises, the value of health benefits, bonuses, and 401K matching benefits, and the value of any other benefits provided by the employer. That amount is reduced to a present-day value.
In addition, there are other tangible or economic losses that may have to be presented by or testified to by a forensic economist. The economist can calculate the value of performing daily and routine household duties such as shopping, childcare, cleaning, cooking, transporting children, or caring for elderly relatives.
Intangible damages refer to what the decedent lost in his or her enjoyment of life. Usually, this element of damages is proved by testimony from family members and friends. The Johns Creek wrongful death lawyer for the family can present photographs or videos of the decedent with his/her children and friends at weddings, vacations, anniversaries. Friends and family can offer stories that reflect the decedent’s warmth, sense of humor, passions, and love of life. In Georgia, the value of life is measured from the decedent’s eyes. That is an important distinction because in some states the value of life is measured from the family’s perspective.
The Estate Claim
An estate claim is brought by the administrator or executor named in the decedent’s will. If the decedent died without a will, or intestate, then the laws of intestacy found in O.C.G.A. §53-2-1, et seq., determine who can bring the estate claim.
Damages sought in an estate claim include:
- Medical expenses, if any, incurred by the decedent before dying
- Funeral and burial expenses
- Pain and suffering if the decedent consciously suffered before death
- Punitive damages
If the decedent survived for a time following the fatal accident, even for a few seconds or minutes, he suffered, and that suffering is compensable. It can be devastating for a jury to hear that the decedent was conscious and aware of his/her impending demise.
In some cases, you can bring a punitive damages claim. Punitive damages can be sought in an estate claim if the defendant’s conduct is proven by clear and convincing evidence to have been willful, malicious, wanton, fraudulent, or oppressive. O.C.G.A § 51-12-5.1(b). This would include an intoxicated or drug-impaired driver (not under the influence of prescribed medication.)
Although there is no cap on punitive damages in product liability cases, 75% of any damages, less the proportionate cost of litigation and reasonable attorney’s fees, awarded go to the state under O.C.G.A § 51-12-5.1(e). The rationale for this curious law is that punitive damages are intended to punish and deter the wrongdoer and are not to compensate the plaintiff. O.C.G.A § 51-12-5.1(c). For other causes of action such as medical negligence, there is a cap of $250,000.
Statute of Limitations
Generally, the person bringing a wrongful death or estate claim has 2-years from the date of the death to bring the action under O.C.G.A. § 9-3-33. However, if the federal government, city, county or the state is a defendant, then you must at least send the proper notice of claim to the appropriate department, which could be between 6 and 12-months.
The statute can also be “tolled,” or paused for a time. For example, if the defendant in a fatal motor vehicle accident was charged with a traffic or criminal violation, the time for bringing the wrongful death claim is tolled until the matter has a disposition or 6-years from the date of the violation, whichever is shorter. At that time, the claimant has 2-years to bring the action.
Get The Help You Need – Call a Johns Creek Wrongful Death Attorney Today
Wrongful death claims should only be handled by a Johns Creek personal injury lawyer who has the knowledge and resources to handle such claims in a timely and professional manner. The legal professionals at Tobin Injury Law are skilled litigation attorneys and have the dedication and compassion to see your case through, beginning to end. We know that nothing can bring your loved one back, but we can make sure the responsible party or parties are held accountable and help to secure your family’s financial future. Contact our office today for a free, confidential consultation.