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Wrongful Death
No one ever wants to experience the sudden death of a loved one due to someone else’s negligence or willful and wanton conduct. And no amount of compensation will be enough for the pain you feel. The goal of a wrongful death lawsuit is to ensure that the survivors the victim had left behind are compensated for the financial loss they will experience because of the victim’s untimely death. The damages recovered in a wrongful death lawsuit are meant not only to ease the unavoidable financial burden that arises after such a tragic death (i.e. funeral and medical expenses), but also to provide for the family in the coming years, especially if the victim was the household’s main source of income.
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Wrongful death occurs when another party’s negligent or malicious conduct causes an individual’s life to end prematurely. This could involve car accidents, medical negligence, defective products, workplace accidents, or criminal behavior.
A wrongful death action is different from other personal injury claims in that it is not the victim (deceased) who is bringing the claim against the at fault party, it is brought by the surviving family members of the victim’s estate. Usually this is the spouse, children, designated beneficiaries or parents.
FREQUENTLY ASKED QUESTIONS
What do I need to prove to bring a wrongful death claim?
The elements you must show to bring a wrongful death claim are:
- The death was caused by a wrongful act, neglect, or default.
- The act, neglect, or default would have entitled the injured person to file an action to recover damages had the death not occurred.
- There are surviving beneficiaries, children, or dependents of the victim.
- Monetary damages have resulted from the decedent’s death.
Who can file within the first year after the decedent passes?
A plaintiff can file within the first year of the person’s death if he or she is:
- the spouse or the heirs (with the spouse’s consent);
- if there is no husband or wife, the heirs of the deceased (children); or
- the designated beneficiary.
The surviving spouse — if any — has the primary power to bring suit within the first year. The spouse can also elect to allow the heirs or the beneficiary to join the lawsuit within that first year but does not have to do so.
Who can file within the second year after the decedent passes?
If the surviving spouse does not file suit within the first year, a plaintiff can file within the second year of the person’s death if he or she is:
- the deceased person’s spouse;
- the heirs (children) of the victim; or
- the deceased’s designated beneficiary.
What this means is other family members can also file a suit without the surviving spouse’s permission.
Parents of the deceased person may only file a claim for wrongful death if there is no:
- spouse;
- heirs (children); or
- a designated beneficiary.
If the parents can file, they have an equal share in the damages (regardless of whether the parents are still married). If there is only one surviving parent, that parent is entitled to all the damages. Extended family members and friends are unable to file this type of claim
What is the statute of limitations for these types of cases?
A wrongful death action must be filed within two (2) years of the victim’s death. If it is not, the family member can lose their rights.
What Types of Damages Can Be Sought in a Wrongful Death Case?
In a wrongful death case, various types of damages can be sought to compensate the surviving family members for their losses.
Some common types of damages include:
- Economic Damages: These damages aim to compensate for financial losses incurred as a result of the death. This may include medical expenses, funeral and burial costs, loss of income, loss of future income and loss of benefits.
- Non-Economic Damages: These damages are intended to compensate for intangible losses such as pain and suffering, loss of companionship, emotional distress, and mental anguish experienced by the surviving family members.
- Punitive Damages: In cases where the defendant’s actions were particularly reckless or intentional, punitive damages may be awarded to punish the at-fault party and deter similar conduct in the future.
- Loss of Consortium: This type of damages compensates for the loss of the relationship, love, and companionship that the surviving family members would have received from the deceased.
- Funeral and Burial Expenses: Reimbursement for the reasonable costs associated with the funeral and burial arrangements of the deceased.
What is the difference between a wrongful death case and a survival case?
A wrongful death action is a claim filed by family members for their own damages.
A survival action is a case filed for money damages a deceased person incurred before he or she passed away. This occurs in situations where a person survives for a certain period of time before expiring and is in pain during that period of time.
What damages can be recover in a survival action?
Recoverable damages include:
- loss of earnings prior to death;
- medical bills; and
- other economic damages.
However, in a survival action, damages are not recoverable for:
- pain and suffering;
- disfigurement;
- or profits lost after death.
A survival action and wrongful death action can be brought together, and each claim allows for recovery of many of the damages the other does not allow.
How Are Wrongful Death Settlements Calculated?
Calculating wrongful death settlements involves a detailed analysis of the specific case, as there is no one-size-fits-all value. Instead, key factors often include the following:
- Decedent’s age and health – The age and health of the deceased at the time of death are crucial. Younger individuals with longer expected lifespans generally result in higher settlements due to the anticipated years of lost income and contributions to family life.
- Earnings and potential future income – The current earnings of the deceased and the potential future income they could have reasonably expected to earn play a significant role in determining compensation. This includes considerations of career trajectory, promotions, and potential raises that the deceased would likely have achieved.
- Impact on surviving family members – This encompasses the loss of guidance, nurturing, and care the deceased would have provided, as well as the emotional distress and loss of companionship suffered by the family.
- Insurance coverage – The amount of insurance coverage available from the liable parties can also influence settlement amounts. Higher coverage limits may allow for a larger settlement to cover the extensive losses experienced by the family.
- Comparative negligence arguments – Colorado follows a comparative negligence system, in which fault is divided between all parties involved in an accident. An accident victim’s financial recovery is reduced in proportion to their share of fault. A victim who is more than 50 percent to blame for their injuries is barred from recovering money. This dynamic means that at-fault parties and their insurers might argue that the deceased was partially or even primarily to blame for the accident as a way of reducing their financial liability or avoiding it altogether.
Does Colorado Have a Cap on Wrongful Death Compensation?
Colorado caps certain types of compensation in wrongful death cases, specifically those that are non-economic in nature, such as grief, pain and suffering, loss of companionship, and emotional distress. This amount is subject to periodic adjustments based on inflation. Different caps may apply when a death results from medical malpractice.
There is an exception to these caps. In cases where the death resulted from a felonious killing, Colorado law removes the cap on non-economic damages, allowing the court to award an amount that it deems fair and just. This exception acknowledges the severity and intent behind the act, providing a pathway for families to seek fuller compensation for their emotional and intangible losses.
A felonious killing as defined under Colorado law to include first degree murder 2nd degree murder or manslaughter so obviously in a murder suicide case there would be a felonious killing however even in some motor vehicle accident cases there can be a felonious killing if there’s sufficient evidence of willful and want in conduct or reckless conduct such as a case where a defendant is driving while intoxicated without headlights on the wrong side of the road There doesn’t have to be a criminal conviction in order for there to be a felonious killing in a wrongful death action the court in the wrongful death action can make an independent determination as to whether the facts rise to the level level of a felonious killing in that particular case,