Understanding Wrongful Death and Survival Claims
When a loved one dies because of someone else’s negligent, reckless, or intentional acts this is considered wrongful death. Wrongful death claims can result from automobile accidents, personal injury accidents, pedestrian accidents, medical malpractice, pharmaceutical errors, dangerous or and vicious animal attacks, work accidents, dangerous and defective products, etc.
When a loved one dies unexpectedly, their families are left with mounting medical bills, funeral and burial expenses, and a growing sense of loss, pain, and mental suffering. All of this on top of their everyday responsibilities and obligations. A wrongful death claim allows the family to receive compensation for their loss.
Who is allowed to file a wrongful death claim?
In South Carolina, a wrongful death claim can only be brought on behalf of the deceased’s immediate family. This includes spouses, parents, children, and siblings. The Personal Representative of the estate brings the claim on behalf of the family. If the surviving member of the deceased’s family is a minor, the court will appoint a Guardian ad Litem to act in the minor’s best interest during the wrongful death claim.
When do I have to file a wrongful death claim?
In South Carolina, the family has three years from the death of the deceased to file a wrongful death lawsuit. This amount of time is known as the Statute of Limitations. A claim is usually null and void if filed after this time.
What types of damages are involved in a wrongful death claim?
Wrongful death claims are brought on behalf of the deceased’s family by the Personal Representative of the estate. Thus, the damages awarded to the family are for those which they suffered as a result of the death of their loved one. These damages fall into two broad categories of damages, Economic and Non-Economic Loss. The following are some examples of damages that may be awarded to the family:
Economic Loss includes: 1) Loss of Support; 2) Loss of Inheritance; 3) Loss of Services; and, 4) Funeral and Burial Expenses.
Non-Economic Loss includes: 1) Loss of society and companionship; 2) Grief and Anguish (Mental Suffering); and, 3) Loss of Consortium.
Because these damages occurred after the death of the loved one, they are considered part of the deceased’s estate and are distributed during the probate process.
For all damages suffered by the deceased before death, South Carolina has a separate action called a “Survival Action.” A survival action is also brought by the Personal Representative of the estate along with the Wrongful Death action. This action is brought on behalf of the deceased for any damages that were a result of the accident suffered by him or her prior to their death. These damages can include:
1) Pre-death mental suffering;
2) Pre-death pain and suffering;
3) Loss of enjoyment of life prior to death; and,
4) Pre-Death economic loss (such as lost wages, medical bills, etc.). suffered by the deceased prior to death).
Wrongful death and survival claims can also involve a claim for Punitive Damages against the at-fault party. When a person commits grossly negligent, malicious, or intentional acts, the court will award Punitive Damages to the family to punish the wrongdoer.
What will a lawyer do for a family who has suffered a wrongful death?
The sudden death of a loved one resulting from another’s negligence, reckless conduct, or intentional acts is unexpected and tragic. It is important that the family seek the advice of a lawyer to not only protect their rights, but the rights of their deceased loved one.
A lawyer can help ease the burden and stress that will follow the loved one’s death. A lawyer can help with the following and much more:
1) Open the estate in Probate and insure an appropriate Personal Representative is appointed;
2) Help the family throughout the Probate process;
3) Represent the family and the deceased’s estate to insure their rights are not violated;
4) Determine the facts of the incident and liability; 5) Negotiate with the adverse party to reach an appropriate settlement; and,
6) If no settlement is agreed upon, determine the appropriate court in which to file the lawsuit.
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