Who Can File a Wrongful Death Lawsuit in Ohio?

Wrongful death lawsuit in OhioJoe Smith was driving home from visiting his relatives in Akron, Ohio when he was involved in a serious collision with another vehicle whose driver was texting and not paying attention to the highway. Joe was gravely injured in the accident and was transported to the local hospital immediately, but unfortunately he died from the injuries he sustained. Joe was not married and had no children. His parents had both passed away. Although his brother, Jim, an attorney, had often encouraged Joe to prepare a will, Joe assumed that, at age 45, he had plenty of time left to take care of that detail and took no action. Joe is survived by Jim and two other siblings who have decided to file a wrongful death lawsuit against the party at fault in the crash.

“Wrongful death” means that someone has died because of the negligence or bad behavior of another person. It means the death is legally the fault of another person and could have been avoided. The Ohio wrongful death laws (found in Chapter 2125 of the Ohio Revised Code (ORC)) define a wrongful death as one “caused by a wrongful act, neglect, or default.” The law allows a wrongful death suit if the wrongful act, neglect, or default would have given rise to a lawsuit if the victim had not died. A wrongful death suit is a civil action, not a criminal one. The defendant does not face jail time, but may have to pay damages to the plaintiffs, in this case Joe’s three surviving siblings.

In a criminal case, the defendant’s guilt must be proven “beyond a reasonable doubt.” In a civil case, the standard of proof is “preponderance of the evidence.” The plaintiff(s) must only show it is more likely than not that the actions of the defendant caused the death of the victim.

Historically, Ohio has long recognized the inequities of denying damages to families of wrongful death victims. The legislature passed the first wrongful death statute in Ohio in 1851. This law conferred a civil right of action on next of kin who may have suffered a pecuniary loss due to the wrongful death of the decedent. The basic substance of this law has been carried down in Ohio through the years, although the statute has been amended several times.

Who Has The Right to Hire an Attorney in a Wrongful Death Lawsuit?

In most personal injury suits, the injured party is the person who has the right to sue. A deceased person obviously cannot bring a lawsuit on his behalf. In Ohio a person known as “a personal representative” of the deceased’s estate files the suit instead. This person functions like an executor or administrator. The representative may or may not be a close relative of the decedent, but if they do not have a background in this area, the representative will need to seek legal expertise as he or she proceeds.

With regards to who can file a wrongful death claim on behalf of a deceased person, Ohio law (ORC 2125.02(A)(1) states:

“A civil action for wrongful death shall be brought in the name of a personal
representative of the decedent for the exclusive benefit of the surviving
spouse, the children, and the parents of the decedent, all of whom are rebuttably
presumed to have suffered damages by reason of the wrongful death, and for
the exclusive benefit of the other next of kin of the decedent.”

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. This means their loss is legally recognized and can give rise to a claim for compensation. 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.

According to statute ORC 2125.02(A)(3)(a), the date of the decedent’s death fixes the status of all beneficiaries of the wrongful death action for determining damages suffered and the amount to be awarded. In determining the amount of damages, the jury or court may consider all factors existing at the time of the decedent’s death that are relevant to a damage determination (ORC 2125.02(A)(3)(b)(i).

The jury or court may award compensatory damages that 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 incurred by the wrongful death. (ORC 2125.02 (A)(2))

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 for the family.

These damages encompass the following areas: loss of support due to anticipated earning capacity of the deceased; loss of the decedent’s services; loss of society including loss of companionship, consortium, care, assistance, protection, counsel, training and education; loss of prospective inheritance; and mental anguish suffered by the surviving spouse, dependent children, parents or next of kin of the decedent. (ORC 2125.02(B))

How Are Proceeds Divided Among Beneficiaries?

The amount received by a personal representative in an action for wrongful death under ORC 2125.01 and 2125.02, whether by settlement of the claim or otherwise, shall be distributed to the beneficiaries “or any one or more of them” (ORC 2125.03 (A)(1)and(2)). If a beneficiary is under twenty-five years of age, the court may create a trust for that beneficiary by ordering that the portion the personal representative receives for that beneficiary be deposited in trust.

There are two separate and distinct forms of compensation for wrongful death—a wrongful death claim and a survival action. A wrongful death claim is brought for the purpose of compensating a decedent’s family for the wrong the death has done to them. The wife and children and sometimes the parents, brothers and sisters can be compensated for the various types of loss the decedent’s death has caused.

Judgment on these claims is not subject to any will the deceased may have had. It is split between the beneficiaries on the basis of “equal consanguinity” (blood relation) to the deceased and beneficiaries may adjust the share among themselves.

If the beneficiaries are not on equal grounds, as concerns blood relation to the deceased, the court may distribute the proceeds in “a manner that is equitable, having due regard for the injury and loss to each beneficiary resulting from the death and for the age and condition of the beneficiaries”(ORC 2125.03 (A)(1)). The court will adjust the judgment of those of equal consanguinity in the same manner if the parties cannot adjust the shares on their own.

Survival actions in a wrongful death suit focus strictly on the decedent. They recognize the compensation due from the pain and suffering the deceased experienced prior to death and any medical bills accrued in the fight to save his life. Damages here will be added to the estate and distributed in accordance with the decedent’s will.

If the deceased has no will, as Joe Smith did not, survival claims will be distributed according to the laws of intestacy and will go to his heirs—in this case, Joe’s three siblings since everyone else has pre-deceased him.

Who Has Jurisdiction Over Wrongful Death Lawsuits?

As has been the case for more than 150 years in Ohio, the local probate court has jurisdiction over the approval and distribution of wrongful death benefits.
When a wrongful death action is filed at the local probate court, full administration of an estate is necessary. There are about a dozen forms to fill out when filing to open an estate with a will and another set of forms when one is filing to open an estate without a will.
Due to the complexity of the law and legal issues that may be involved in the administration of a wrongful death estate, the court recommends that all those administering an estate (“fiduciaries”) seek legal counsel.

The average estate is generally finalized in 13 months or the fiduciaries must explain to the probate court why it is not completed or near completion. In the case of wrongful death litigation, more time may be necessary. The estate’s fiduciary is required to keep the court informed on an annual basis of the progress of any wrongful death claim(s).

Generally, the estate’s fiduciary gathers the deceased’s assets and files an inventory with the probate court within 90 days of his or her appointment by the court (unless the survivors are formally released from administration of the estate because its value is too low). With a wrongful death case, the fiduciary does not file the inventory until the wrongful death action is resolved and any settlement approved (ORC 2125.03).

Your wrongful death attorney can guide you through the steps involved in administering a wrongful death estate making sure that you adhere to all local rules governing probate matters.

How Long Does a Personal Representative Have to File an Action?

According to Ohio law, a civil action for wrongful death must be commenced within two years of the decedent’s death. (ORC 2125.02 (D)(1). With certain wrongful death product liability claims, the statute extends the time to file a claim based on the circumstances. (Refer to ORC 2125.02(D)(2)(a)through(g)).

The Ohio wrongful death statute also addresses a wrongful death action on behalf of a minor child regarding who is eligible and who is not eligible to recover in that situation. (Refer to ORC 2125.02(E)(1) to (3)).

What If the Accident Reveals Joe Was Also a Cause of the Accident?

In Ohio, “comparative negligence” law is recognized. This means the family of the deceased may recover damages from the other party even if the victim is found to be partially at fault for his own death.

This article highlights some of the statutory rules which govern the administration of a wrongful death estate. Dealing with the death of a loved one is never easy because no matter what you do you cannot replace that person or their meaning in your life. If you have had a loved one involved in a vehicular accident anywhere in Ohio, which has resulted in a wrongful death due to the negligence or recklessness of one or more parties, as was the case with Joe Smith, you may want to speak to one of the experienced Ohio wrongful death attorneys at our law firm.

It may sound like an insurance company is offering you a substantial amount of money, but remember the insurance company’s goal is to minimize the claim and settle for the least amount possible or even to try to show your loved one had some responsibility in the crash. It is necessary to compute the short-term and long-term effects of the death on family members and this could be difficult if you cannot adequately evaluate your future financial situation or exactly what happened in the accident.

If you think you may  have a wrongful death case, please contact us for a free consultation with one of our experienced attorneys to learn more. A free consultation is just that – free. There is no cost and you will be under no obligation to hire our law firm. To schedule a free consultation, please call 1-888-459-0765, chat with one of our 24-hour live chat representatives or send us a website message now.

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