Wrongful Death Car Accident Settlement: How It Works

Wrongful death did not exist at common law; every state created it by statute, and each statute says who may sue. In many states the claim is brought by the personal representative of the deceased's estate, on behalf of the beneficiaries the statute names, which means a probate estate must be opened and a representative appointed before the claim can be filed. In others, the spouse, children or parents bring the claim directly in a defined order of priority. A few states allow anyone financially dependent on the deceased to recover.

The beneficiaries are usually the surviving spouse and children, then parents if there is no spouse or child, and in some states siblings or other dependents. Unmarried partners generally have no claim unless the statute provides for them, which few do. Stepchildren and other relationships are treated differently by state. Who is a beneficiary determines not only who recovers but how the proceeds are divided, which the statute or the court decides.

A survival action is a separate claim, belonging to the estate, for what the deceased could have claimed had they lived: the pain and suffering between the crash and the death, the medical expenses, and in some states lost earnings for that period. Where the deceased died instantly there is little survival claim; where they survived for hours or days, it can be substantial. The two claims are usually brought together.

Economic damages are the financial support the deceased would have provided over their expected working life, calculated by an economist from their earnings, benefits and the share they would have spent on the family, together with the value of the household services they performed, and funeral and burial expenses. Medical expenses before death are claimed in the survival action or the death claim depending on the state. For a wage earner with dependents these figures are large; for a retired person or a child they are smaller, and the non-economic damages carry the claim.

Non-economic damages are the survivors' loss: companionship, society, guidance, care, and in many states the grief and mental anguish of the loss itself, though some states exclude grief and allow only the loss of the relationship. The statute defines what is recoverable, and the differences are significant. A few states cap wrongful death damages or limit them for certain beneficiaries; most do not.

Punitive damages, to punish reckless conduct such as drunk driving, are available in many states in a wrongful death claim and not in others, and some states route them through the survival action only. A drunk driving death is the most common context in which they are claimed, and the driver's criminal conviction is admissible evidence of the conduct.

Suppose your husband, 44, was killed when a drunk driver ran a red light and struck his car on his way home from work. He survived for two days in intensive care. He earned $78,000 a year, and you have two children aged nine and twelve. The driver was arrested at the scene and later convicted of vehicular manslaughter.

You were appointed personal representative of the estate. The claim combined the wrongful death claim for you and the children, the survival claim for his two days of suffering and his medical expenses, and a punitive damages claim based on the driver's intoxication. An economist calculated the lost support and household services to his expected retirement. The driver carried a $50,000 policy; your household policy carried $250,000 in underinsured motorist coverage per person; and the bar that had served the driver was identified through the police investigation and had a liquor liability policy.

The driver's limit was paid at once. The underinsured motorist claim and the dram shop claim against the bar were litigated and resolved at mediation. The settlement required court approval and allocation between you and the children, with the children's shares placed in court-supervised accounts until they reach adulthood. All figures are hypothetical; the structure is typical of a drunk driving death claim.

The family is grieving, and the claim's deadlines and evidence do not wait. These steps can be handled by one family member or by an attorney from the start.

• Obtain the police report and the crash reconstruction report if one was prepared; fatal crashes are usually investigated in more detail, and the reconstruction is the central liability evidence.
• Find out whether criminal charges have been filed and who the prosecutor is; the criminal file contains evidence the family cannot otherwise obtain, and the family has rights as victims in that process.
• Preserve the vehicles; insurers dispose of total-loss vehicles quickly, and a product or reconstruction question depends on them.
• Locate every auto policy in the deceased's household for underinsured motorist coverage, and any life, accidental death or employer benefits.
• Open a probate estate and have a personal representative appointed if the state requires it; the claim cannot be filed without one.
• Keep records of funeral and medical expenses, and of the deceased's earnings and benefits.
• Do not give a recorded statement to any insurer or accept any offer; early offers in death cases are routinely a fraction of the claim.

Wrongful death law varies more than any other area of injury law. Who may sue, who benefits, what damages are recoverable, whether grief is compensable, whether punitive damages are available, and how proceeds are divided are all set by each state's statute. Alabama, uniquely, allows only punitive damages in wrongful death. Some states cap damages or limit recovery for the death of a child or an elderly person without dependents. An attorney in the state where the death occurred applies the specific statute.

Deadlines run from the death, not the crash, and are often two years, but are one year in some states and shorter in others; several states apply a shorter wrongful death deadline than the injury deadline. Government notice deadlines of months apply to claims involving public vehicles, roads or employees. Comparative negligence reduces the claim by the deceased's share of fault, and the contributory negligence states bar it for any share, which makes the reconstruction decisive.

No-fault states pay a death benefit and funeral expenses through the deceased's own PIP coverage, in amounts set by the policy and state law, and the wrongful death claim against the at-fault driver proceeds because the threshold is met. Michigan's survivor loss benefits under its no-fault system are substantial and are claimed from the deceased's own insurer in addition to the claim against the at-fault driver.

A driver who causes a death is often prosecuted, for vehicular manslaughter, DUI causing death or reckless driving, and the family is understandably focused on that case. It does not pay the family; restitution orders in criminal cases are usually limited to out-of-pocket expenses and rarely collected. The civil wrongful death claim is the family's financial recovery, and it proceeds on a different standard of proof, so a civil claim can succeed even if the driver is acquitted or never charged.

The criminal investigation produces evidence the civil claim uses: the reconstruction, blood alcohol results, phone records, and witness statements. A guilty plea or conviction is admissible in the civil case in most states and effectively resolves liability. The civil claim is often paused until the criminal case concludes, because the driver will not testify while charges are pending, but the civil deadline runs regardless and the claim must be filed in time.

Families have rights as crime victims in the criminal process, including notice of hearings, the opportunity to make a victim impact statement, and in some states input on plea agreements. A victim advocate in the prosecutor's office handles those rights; the civil attorney handles the claim.

A wrongful death claim is a statutory claim whose every element, who sues, who benefits, what is recoverable and by when, is set by the state, and it is paid from coverage that must be found from every responsible party. The questions to answer early are who the statute allows to bring it, whether an estate must be opened, when the deadline runs, and what policies and parties exist beyond the at-fault driver. Wrongful death claims are handled on contingency.

Ask Legal Matters is a free claim-review request service, not a law firm. Requests may be shared with independent attorneys and legal services partners who handle inquiries in your state, and an attorney must evaluate the facts before anyone can say what the claim is worth. If you lost a family member in a crash caused by someone else, you can request a free claim review when you are ready.

• Car Accident Claims in the United States: The Complete Guide
• Truck Accident Claims: Liability, Federal Rules and Compensation
• Wrongful Death Claims: Who Can File, Deadlines and Damages
• Airbag Did Not Deploy in a Crash: Can You Sue, and Whom?
• At Fault in a Car Accident? Comparative Negligence Explained
• What Is the Average Car Accident Settlement? What Sets the Value
• Back and Neck Injury Settlement After a Car Accident: Factors
• Bicycle Accident Claim: Hit by a Car While Riding
• Broken Bone Car Accident Settlement: What Drives the Value

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