San Jose Wrongful Death Attorneys

Van Der Walde & Associates is an accomplished and respected personal injury law firm located in Northern California. The firm has protected the legal rights of hundreds of personal injury clients, and has recovered millions of dollars in damages on behalf of its clients. The paralegals, administrative staff, and attorneys are well educated and work together to represent you in an efficient and effective manner. If a loved one has been fatally injured as the result of an accident, contact a skilled Northern California Wrongful Death attorney at Van Der Walde & Associates immediately.

What is a claim for wrongful death?

If your family member, spouse, or loved one is fatally injured by the negligence of another, you may have a claim for wrongful death. This type of legal claim allows certain surviving family members to recover damages from those responsible for the losses they suffer as a result.

Who may recover for wrongful death?

In order to recover damages for wrongful death, an individual must be within one of the following categories:

Surviving Spouse or Domestic Partner

Domestic partners must meet the "specific criteria of the state" in order to qualify.

Children, including adopted children
Dependent persons

Parents

Parents can recover if they were dependent upon the child for support, or if there are no other survivors

Stepchildren
Others

If spouses were not legally married, but believed in good faith that they were, and one spouse dies by another's negligence, a lawsuit for wrongful death can be used to recover damages so long as the surviving spouse was dependent upon the decedent spouse for support.

Minors residing in the same household, other than children, who were dependent upon the decedent for at least ½ of their support.

Usually, more than one family member will be within the class of persons able to bring this type of lawsuit.

How long do I have to bring a lawsuit for wrongful death?

Just like a lawsuit for negligence, there is a two year period of limitation on a lawsuit for wrongful death in California. The suit must be brought within two years of the death of the injured person. For example, if a husband is severely injured in an auto accident on January 1, 2005, he must bring a lawsuit to recover for his own injuries by January 1, 2007. If the husband dies because of his injuries on February 1, 2005, the wife must bring a lawsuit to recover for wrongful death by February 1, 2007.

What may be recovered?

Damages that may be recovered in a wrongful death claim are subject to the general requirements that they are reasonable, and reasonably certain to result in the future. Subject to these limitations, a person entitled to sue for wrongful death can recover the following damages:

Loss of love, society, companionship, comfort, protection, care and consortium

Damages that fall into this category are intended to compensate the survivor for the intangible benefits of human interaction. This category often makes up the largest portion of the claim. The largest difficulty with this particular area of damages is that the value of this item of loss is so difficult to measure. In determining the amount of these damages, several things are taken into consideration, including: the closeness of the relationship involved, the age and health of the survivor, and the life expectancy of the decedent.

Loss of Services

Where a decedent performed domestic services for the survivor, the survivor may recover the value of those lost services in a wrongful death action. For example, imagine a person's Grandmother is fatally injured in an auto accident determined to be the fault of another person. The Grandmother usually performed babysitting services for her only daughter. In this situation, her daughter would be entitled to recover for the value of those services from the negligent party.

Loss of financial contributions

Where a survivor received expected financial contributions from the decedent, they can be recovered from the negligent party. Examples of items in this category include income, benefits, and support payments that would normally have been used to support the surviving person. For example, if a person's wife is killed as a result of someone's negligence and the husband sues to recover damages for wrongful death, he is entitled to recover for the loss of the part of his decedent wife's earnings that would have gone towards his support. Children may also claim this element of damages where their parent(s) have been fatally injured as a result of a third party's negligence.

Loss of Training and Advice

Where the survivor would have received training and advice from the decedent, the survivor can recover the value of the loss. A common example of damages in this category is the advice, training and moral support that children receive from their parents. If a child's parent is fatally injured by a negligent person, the child will lose out on that parent's advice, training and moral support each day. The child is entitled to recover damages for these losses.

Funeral and Burial Expenses

Reasonable funeral and burial expenses incurred by a survivor may be recovered in a lawsuit for wrongful death. These expenses must be considered reasonable before they are recoverable. Often times, they will be considered reasonable they are paid. Sometimes, the court will look to the condition of the decedent's estate at the time the funeral expenses were incurred to determine reasonableness. If their estate is large, a larger funeral expense might be more reasonable; if their estate is small, a smaller funeral expense might be more reasonable.

What may not be recovered?

Detriment and Medical Expenses incurred by Decedent prior to Death

A lawsuit for wrongful death is intended to compensate the survivor for their own losses, not for the losses incurred by the decedent prior to death. Therefore, a survivor cannot recover for the following things:

ParentsPain, suffering, or anguish experienced by the decedent prior to death
ParentsMedical expenses or other expenditures, incurred by the decedent prior to death

Even though these elements are not recoverable in a wrongful death action, another remedy is available so that these expenses and other elements can be repaid to the decedent's estate. This is called a survival action. A survival action can be maintained where the injured party dies from the injuries inflicted by a negligent person. The decedent's personal representative-i.e., the executor of their estate-brings this type of lawsuit and recovers for all economic losses personally by the decedent prior to death. A survivor action does not include damages for the pain and suffering experienced by the decedent, only actual quantifiable loss, such as medical bills and lost wages.

Survivor's Mental Suffering

Generally, a qualified survivor may not recover for their own grief, sorrow, anguish, mental suffering, or emotions over the loss of their loved one. Although these items are excluded from consideration in wrongful death claims, as a practical matter, these losses are often included as part of the loss of love, comfort, and companionship that is an allowable element of damages.

Only the elements discussed in the previous section are recoverable. The only way mental suffering would be recoverable for the survivor, is if the survivor was a witness to the fatal injuries of a close relative and thereby suffers emotional distress. This type of a claim is known as Negligent Infliction of Emotional Distress.

What else may affect recovery in a wrongful death action?

Possible considerations in determining the amount of a wrongful death recovery include:

Life Expectancies

Damages in a wrongful death case are recoverable for the period where the survivor and the decedent would have been alive together. Damages must be limited to the life expectancy of the survivor or the decedent, depending on which is shorter. For example, if a wife is fatally injured in a car accident, and the husband sues to recover damages in a wrongful death lawsuit, his recovery will be limited to the amount of time he and his wife would otherwise have been alive together. If he was expected to live another 20 years, and his wife was expected to have lived another 30 years, he can only recover damages for the 20 years of his life expectancy where they would otherwise have been alive together. Better example is mother or father versus son or daughter - ie Dad was 75, Son only 50, 10 years LE for dad, therefore only 10 years of damages

Earning Capacity of Decedent

Another consideration in determining the amount of wrongful death damages is the amount of lost support and financial contributions from a decedent to the survivor. The determination of exactly how much will be recoverable for these elements can be based on factors such as the decedent's earning capacity. In short, the amount that the decedent could have earned or contributed over their lifetime will be calculated and then reduced in value to today's dollars - this is known as present value.

Relationship between Survivor and Decedent

One other consideration affecting the recovery of damages in wrongful death claims a claim involves introducing evidence of the nature of the relationship between the survivor and the decedent. The closer the relationship, the more the damages are presumed to be. This can be shown by the frequency of interaction between the claimant and the decedent and the quality of their interaction - ie were there joint vacations, holidays, birthdays, ect. Photos, home movies, letters, birthday/Mother's day/Father's day cards are also important in assessing the closeness of the lost relationship.