A wrongful death claim exists when a person’s death is the fault of another. The person at fault will sometimes face criminal prosecution, which is entirely separate from the civil lawsuit for wrongful death. The driver at fault in an auto accident, the owner of an establishment where a fatal accident occurred and the manufacturer of a defective product are common examples of those who face wrongful death suits for their actions.
State law determines who may file a wrongful death lawsuit. In Texas, wrongful death lawsuits may be brought by the surviving spouse, children and parents of the person who was killed. By contrast, Louisiana law recognizes “categories” of victims. For example, the surviving spouse and children of a deceased person can always file a wrongful death claim. If there is no surviving spouse and no children, the surviving parents can bring a claim. If there are no surviving parents, the brothers and sisters of the deceased person can bring a claim. If there are no surviving brothers and sisters, the surviving grandparents of the deceased person can bring a claim.
Survivors can generally recover compensation for pecuniary loss, loss of companionship and society, mental anguish and loss of inheritance. Pecuniary loss means the loss of the care, maintenance, support, services, advice, counsel and reasonable contributions of a pecuniary value that the spouse would, in reasonable probability, have received from his or her deceased spouse.
A “survival action” can also be filed on behalf of the deceased person’s estate to recover damages that the deceased person could have recovered had he or she survived. For example, the estate can recover for the conscious physical pain and mental suffering experienced by the victim before he or she died. The estate can also recover for the medical expenses incurred before death as well as for funeral and burial expenses.
Punitive damages may also be available depending on the facts of the case. Punitive damages are extra damages designed to punish outrageous behavior and to serve as a deterrent.
Each state sets a time limit to bring a wrongful death claim. In Texas, the time limit is called the “statute of limitations” and is generally two years in length. In Louisiana, the time limit is called the “prescriptive period” and is generally one year. Because various factors may lengthen or shorten the time limit, you should consult with an attorney as soon as possible — even if you believe the statute of limitations has already passed.