Jason Stephens | September 8, 2022 | Wrongful Death
A victim injured in an accident caused by somebody else can file a personal injury claim seeking monetary damages. But what happens if the victim dies from injuries sustained in the accident?
Since a deceased cannot file a lawsuit, does the injury claim die along with the accident victim? Fortunately not. The Texas wrongful death statute allows close relatives of the victim to file a wrongful death lawsuit. Following is a list of steps you need to take after a wrongful death claim arises.
Determine If Your Claim is Viable
Will your claim stand in court? It’s not enough to be in the right. You have to be able to prove it. Schedule a free initial consultation with an experienced personal injury lawyer who can evaluate the viability of your claim. The essential elements of a wrongful death claim are:
- An injury that caused someone to die or caused a fetus not to be born alive;
- Someone’s wrongful behavior caused the injury; and
- The injured person or fetus could have filed a viable personal injury lawsuit if they had not died or had been born alive.
Although proving a wrongful death claim is similar to proving a personal injury claim, damages are different (see below).
Check the Statute of Limitations Deadline
Usually, you must file a wrongful death lawsuit within two years of the victim’s date of death (narrow exceptions apply). If you fail to file a lawsuit by the deadline, you cannot even settle your claim outside of court.
Estimate the Value of the Claim
In a successful wrongful death lawsuit, the following elements of damages apply:
- The victim’s loss of earning capacity, if any (this element of damages does not apply to child victims);
- Loss of care, maintenance, services, support, advice, and counsel from the deceased victim;
- The mental anguish suffered by the surviving family members;
- Loss of love, companionship, and comfort; and
- Loss of inheritance, including the amount the deceased victim would have added to their estate between the time of their actual death and the estimated time of their natural death if there had been no accident.
A court will divide these damages among surviving close relatives.
Determine Who Can File the Claim
Texas law specifies that damages generated by a wrongful death claim should be divided among the victim’s close surviving relatives:
- The spouse,
- The children, and
- The parents.
One or more of the above-listed parties can file a wrongful death lawsuit without the others, but a court will split damages among all parties eligible to file a wrongful death lawsuit.
Determine Who Is Liable for Your Claim
The person who caused the accident is almost certainly liable but likely unable to pay your claim. In most cases, it is the defendant’s insurance company that you need to approach with a settlement demand:
- An auto insurance company, in the case of a car accident;
- A business liability insurance company, in the case of a slip and fall accident at a commercial establishment; or
- A medical malpractice insurance company, in case of a medical malpractice claim.
A lawyer can help you identify the appropriate liable party.
Send a Demand Letter to the Liable Party
A demand letter simply explains the claim (typically without a lot of detail), explains why the defendant is liable, and demands payment. It may or may not include a specific dollar amount.
Don’t expect the demand letter to resolve your claim–it’s just a starting point for negotiations. If the liable party is an insurance company, it will respond with a routine “reservation of rights” letter.
Commence Settlement Negotiations
Since insurance companies are full of tricks, direct all communications from the insurance company to your lawyer and let your lawyer do the negotiating for you. Remember, your lawyer cannot settle your case without your permission.
What if the Opposing Party Is Unwilling To Settle?
If the opposing party is not willing to settle, it might be in your best interest to file a lawsuit. Filing a lawsuit will beat the statute of limitations deadline. It will also give you access to the pretrial discovery process, where you can demand evidence that is in the defendant’s possession. New evidence could change the course of the negotiations.
Either Settle or Go to Trial
Armed with new evidence from the pretrial discovery phase, you can settle the case or proceed to trial. Few wrongful death claims make it to trial-–most settle out of court.
You’re Going To Need a Lawyer
Wrongful death lawsuits involve relatively large claims. The more money that is at stake, the harder the liable party will fight your claim. Under these circumstances, an experienced wrongful death lawyer is a necessity, not a luxury.
Contact Our Wrongful Death Law Firm in Fort Worth, TX
If you’ve been injured in an accident in Fort Worth and need legal help, contact our Fort Worth wrongful death lawyers at Stephens Law Personal Injury | Wrongful Death | Truck Accidents to schedule a free consultation.
Stephens Law Personal Injury | Wrongful Death | Truck Accidents
1300 S University Dr # 300
Fort Worth, TX 76107