What Happens When You File a Wrongful Death Action

wrongful death action in OhioWrongful death is a term many people have heard, but they are not sure what it means. It is not always easy, even for experts, to determine if there has been a wrongful death.

In general, when someone loses their life because another person or business did something wrong and the law determined that the wrongdoer’s conduct was negligent or intentional, the survivors have a claim for wrongful death. They can assert in court a legal claim for financial compensation because of the wrongful conduct.

It is important to understand, sometimes sadly, that no one is going to jail in a wrongful death lawsuit. It is a civil action for damages to compensate the family of the deceased.

If there are criminal charges in the matter, they must be filed separately against the wrongdoer by the appropriate criminal authorities.

Many people think of a car accident when they think of wrongful death and this can be an example of negligent conduct that has resulted in the demise of another person, but all of the following can be grounds for wrongful death claims (Remember the death was legally the fault of another person and could have been avoided):

• The mistake of a physician;
• A pharmacist who filled a prescription incorrectly;
• A company that manufactured a piece of equipment or a product designed with a flaw that caused someone to be killed;
• A relative who lost their life in a fire because the building was inadequately equipped for such a catastrophe;
• Any conduct that negligently or intentionally caused someone else to die.

Who Brings a Wrongful Death Suit

Laws about wrongful death vary by state, but in Ohio, a wrongful death lawsuit is brought on behalf of the victim’s estate by the personal representative–the executor, or the administrator of the estate. It is filed in the name of the executor or the administrator. This means that the representative (an executor is often named in the deceased person’s will) files the lawsuit on behalf of all beneficiaries named in the will. This is usually close family members such as spouses, children, and sometimes the parents of the deceased.

If the deceased did not have a will, then the next-of-kin must apply to the probate court to be appointed administrator of the estate of the person who died. The administrator has basically the same role as the executor (he represents the legal heirs of the deceased) and both are legally accountable to the court in their positions of trust.

Who Chooses The Lawyer

You cannot file a wrongful death action without full administration of the estate in the probate court and again, only the executor or the administrator of the estate can file a wrongful death claim.

The executor or administrator chooses the attorney for the wrongful death lawsuit. That person asks the probate court to authorize them to enter into a contract with the attorney they have selected.

Who Has The Right To Benefit From a Claim

How monies from a wrongful death settlement or jury award will be distributed by the estate’s personal representative is determined by the type of claim. All money received is reported to the probate court. Many times, all of the heirs reach an agreement between themselves and ask the court’s permission to allocate funds pursuant to that agreement. If no agreement is reached, then the court will allocate any proceeds by issuing an order after giving notice and holding a hearing.

If a family remains (spouse and children), they will probably get the exclusive benefit of the wrongful death proceeds as the wrongful death action is based on the loss of financial support and the loss of companionship. Parents of the deceased would normally be entitled to only minimum compensation, but it is possible, they, and other family members, such as grandchildren or siblings of the deceased, may be able to show in court that they suffered a compensable loss due to the death of the victim. A more distant relative of the deceased who is not an adoptive parent or a biological relation is usually not able to recover under Ohio’s wrongful death statute. If there is no immediate family, it becomes more difficult to predict how any money will be distributed. In this circumstance, the court will try to make an equitable allocation among surviving relatives.

Depending on the events surrounding the deceased’s death, courts can also award “punitive damages” to surviving family members. They are awarded when the defendant engaged in particularly reckless or egregious conduct resulting in the deceased’s death. These damages are designed to punish and deter similar behavior in the future. An example would be an automaker that continues to sell a defective vehicle to the public although it has already been shown the vehicle has caused the deaths of several drivers.

Two Types of Wrongful Death Claims

It is important to remember that Ohio recognizes two separate and distinct forms of compensation for wrongful death—Survival actions and Wrongful death actions.

Survival Actions

A survival action is the filed by the personal representative and is a claim the decedent would have been able to bring against the wrongdoer if he or she were still alive. Survival actions focus strictly on the deceased person and compensate for such things as medical bills and the pain and suffering the deceased suffered up until the moment of death.

In other words, death does not extinguish the right to sue in these types of cases and this is how wrongful death civil claims came about in Ohio. The Ohio legislature passed the first wrongful death statute in 1851. The state has long recognized the inequities of denying damages to families of wrongful death victims.

If money is received from survival claims, these funds become an asset of the estate. Distribution is determined by the decedent’s will, of if he or she did not have a will (and is therefore, “intestate”), funds are distributed according to the intestacy laws of the state of Ohio.

Wrongful Death Claims

A wrongful death claim is family-focused and its purpose is to compensate the decedent’s family—the wife and children and sometimes the parents or the siblings of the deceased. Proceeds will be distributed to the decedent’s heirs with each share adjusted in an equitable manner with “due regard for the injury and loss to each beneficiary resulting from the death.” (Ohio Revised Code (ORC)(2125.03)(A)(1)). Age and condition of the beneficiaries is also considered. A monetary value can be assigned to each claim. Such claims may include the following “compensatory” damages:

• Loss of support for the reasonably expected earning capacity of the decedent;
• Loss of services of the decedent;
• Loss of the society of the decedent including loss of companionship, loss of the relationship with the deceased (consortium), care, assistance, attention, protection, advice, guidance, counsel, instruction, training and education.
• Loss of prospective inheritance to the decedent’s heirs at law at the time of the decedent’s death;
• The mental anguish incurred by the surviving spouse, dependent children, parents, or next of kin of the decedent.

Compensatory damages are an attempt to achieve compensation for the survivors as if the decedent had not died but had continued to provide support and companionship to the family. The jury or court may award compensatory damages it determines are proportionate to the injuries and loss resulting to the beneficiaries from the wrongful death and may award reasonable funeral and burial expenses out of the wrongful death damages settlement or jury award.

Statute of Limitations

A wrongful death lawsuit must be filed in court within a certain period of time. This is called the statute of limitations. The statute of limitations is generally two years from death in such cases, but the clock may begin to run on the deceased’s date of death, or upon discovery of the person’s cause of death, or upon discovery of the defendant’s negligent conduct.

It is not a good idea to wait until the statute of limitations period is about to expire before filing a wrongful death lawsuit. If the lawsuit is filed right before the deadline, the defendant may no longer be in the area, or if the wrong defendant is served, the case could be dismissed and the claimant would get nothing. Another reason not to wait is that important evidence could be lost or destroyed and crucial witnesses may be unavailable or have fading memories about what happened. Irreparable damage to your case can be done by waiting too long to prosecute and start an investigation.

There are exceptions to the statute of limitations when wrongful death is caused by product liability or in a case where claims survive the death of an individual. These exceptions are complex areas of the law which are very difficult for the average person to attempt to bring into court without seeking assistance from a wrongful death attorney.

Finding a Wrongful Death Attorney?

The sudden and unexpected death of a family member is overwhelming for everyone involved. When a loved one’s death has been tragically caused by the negligence or recklessness of another, the spouse of the deceased person, the children, and other family members are generally not thinking about filing a lawsuit. Although the family’s financial condition may be seriously threatened by their loss, no amount of money received will undo the harm that has been done. These survivors are doing their best they can to get through each day and do not want to rehash the horrific events that led to their loved one’s demise.

The family may even be thinking about how kind the representatives of the at-fault party’s insurance company have been to them. If you are one of these people who just wants to put things behind them and get on with life, you need to survey your options and think deeply about the long-term effects your loved one’s death will have on the family. How is your future financial situation looking and who really wants to help you get the compensation your family deserves?

A generous check from the other party’s insurance company may seem enticing but be assured the insurance company is not thinking about your family’s future. They want to get this event behind them at the least cost to their company.

Our highly experienced Ohio wrongful death attorneys will sit down with you in a free consultation and help you decide if you have grounds for a wrongful death suit, what kinds of claims you should file and against whom. They will begin an investigation of what happened the day your spouse or relative died.

We have medical personnel and accident specialists on staff. If necessary we will hire additional experts to go into court and testify about issues relating to your case.

For more information, please contact us any time of the day, weekends, evenings or holidays at 1-888-459-0765. You can also chat with one of our 24-hour live chat representatives or send us a website message.

You may also request a FREE copy of our book, “A Wrongful Death in Ohio—Actions Families Can Take After The Wrongful Death of a Loved One.” It will give you an overview of wrongful death laws in this state and explain the issues which can arise in a wrongful death claim.

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