What is a Wrongful Death Claim?
By Lou Cutrone
One of life’s unavoidable realities is that we all eventually must die. But when death comes to a loved one prematurely and as a consequence of the wrong doing of another person, product, place, company or other entity, the death is deemed legally wrongful and the law provides for reasonable compensation. This is known as a wrongful death action in the legal community. Wrongful death actions can have any number of theories of liability against the responsible party. For example, the parents of a child who dies at birth because of medical negligence may have a wrongful death claim sounding in medical malpractice. A wife whose husband is killed because of an automotive defect such as a failed seatbelt may likewise bring a claim sounding in product liability. The children and wife of an elderly man who is hit by a car while legally crossing the street may bring a claim for wrongful death that is based on negligence while driving. What makes a particular lawsuit a wrongful death claim is not how or why the death occurred, but rather, that the damages for which the lawsuit is brought result from the death of a loved one. Wrongful death lawsuits are, at first glance, peculiar in the law, primarily because there are limits as to who may file suit and what damages may be recovered.
Governing Law in California . . . Who May File a Lawsuit.
In California, a claim or lawsuit for wrongful death is made pursuant to California’s on-the-book statutes (as opposed to common law). California Code of Civil Procedure § 377.60 (CCP § 377.60) establishes who may file a lawsuit for the wrongful death of another. Only those persons expressly set forth in CCP § 377.60 have standing to maintain a wrongful death action. Under this section, family members are entitled to bring a wrongful death lawsuit in court. Usually (but not always) grandparents, parents, children and siblings of the decedent are permitted to sue. Spouses are also permitted to bring a claim so long as the surviving spouse was legally married to the decedent at the time of death. Common law spouses, known in the law as putative spouses, may or may not bring a wrongful death lawsuit depending upon how long they’ve lived together and whether the putative or common law spouse was dependent on the decedent at the time of death.California registered domestic partners are also entitled to bring suit.
Below is a more detailed summary of who may bring a wrongful death lawsuit in California:
- The decedent’s surviving spouse or domestic partner, the decedent’s living children or if deceased then their children; or, if there is no surviving issue (that is, no surviving lineal descendants), then any person who would be entitled to succeed to the estate if the decedent had died without a will are all eligible wrongful death claimants. The decedent’s parents may file suit if the decedent left no issue. This is true even where the decedent is survived by a legal spouse or domestic partner. Grandparent’s status as heirs and wrongful death claimants are not affected by termination of decedent’s parents’ parental rights. [CCP § 377.60(a)]
- The decedent’s putative (a.k.a. commons law) spouse, children of a common law spouse, stepchildren, and parents, but only if they were dependent on the decedent at the time of death. [CCP § 377.60(b)]
- Minors who resided in the decedent’s household for the 180 day period prior to the decedent’s death and who were dependent on the decedent for one-half or more of their support. [CCP § 377.60 (c)
- Lastly, instead of an individual law suit brought by the defined individual claimants as identified above, the decedent’s personal representative on their behalf.
While you may think that each wrongful death plaintiff has his or her own individual and separate claim for wrongful death, under California law these “separate claims” are actually considered joint, single and indivisible. This is known as the “one action rule.” It means that there cannot be a series of individual wrongful death suits over the death of any one individual; instead each and every legally entitled claimant must join or be joined together in one single lawsuit.
The professionals at Cutrone & Associates are knowledgeable, experienced and skilled in wrongful death claims. Our attorneys are happy to answer all questions about who may bring a suit and under what conditions and circumstances. Please call us to arrange a free, no obligation consultation with one of our attorneys.
What Damages May Be Recovered for a Wrongful Death?
In addition to who may sue, CA Code of Civil Procedure § 377.60 both establishes and limits the kinds of damages a wrongful death claimant may recover in any wrongful death lawsuit filed under California law. Wrongful death damages are statutorily limited to the loss of love, care, comfort, society and support (usually financial support) provided by the decedent. Other types of general damages such as pain and suffering, and even grief are not recoverable under California law. Neither can the claimant recover the decedent’s medical bills. This is why it is so important to retain an attorney who is both experienced and skilled in managing and presenting a wrongful death claim in court. Many attorneys who lack such experience are confused about what damages are recoverable and what are not. They do their clients a disservice by failing to present the right kinds of evidence for these statutorily defined damage categories. Here again the experienced attorneys at Cutrone & Associates have presented and prosecuted numerous wrongful death law suits in California’s courts. They understand not only the enormous and personal significance of their client’s loss, but how to fully prosecute those losses in ways that assure a high probability of success and the maximum recovery under the law.
Are Other Damages, such as Medical Expenses, Wage Loss, Pain & Suffering and Punitive Damages Recoverable?
As explained above, a wrongful death claimant may not recover the medical expenses of the decedent, even if those expenses were made necessary by the person or entity that caused the wrongful death in the first place. Even if the decedent, had he or she lived, been entitled to recover punitive damages, the wrongful death claimant cannot recover punitive damages under California law (with the exception of death from felony homicide.) Generally, only the loss of love, care, comfort, society and support are recoverable damages for a wrongful death plaintiff in California.
There is however, another statute in California that does allow for the recovery of the decedent’s medical expenses as well as lost wages and earning capacity, some pain and suffering and even punitive damages that would otherwise had been available to the decedent had he or she lived. This action or claim is known in California as a “survivor’s action” and it is brought under CA Code of Civil Procedure § 377.30. A wrongful death claim is separate and distinct from the decedent’s action which “survives” to the decedent’s estate. Thus, the survivor’s action is brought by the estate on behalf of its beneficiaries. It is not uncommon for wrongful death claimants to likewise be the beneficiaries to the decedent’s estate and therefore the ultimate recipient of any damages awarded for the survivor’s claim.
Here again, it is important to choose an attorney who is experienced and skilled in bringing not only a well executed Wrongful Death Claim under Code of Civil Procedure § 377.60, but also a Survivor’s Action under Code of Civil Procedure § 377.30. The attorneys at Cutrone & Associates almost always bring both types of claims when representing clients who have lost a loved one due to the wrongful action of another.
Keep in mind that certain statutes of limitations apply to wrongful death cases in California. If a lawsuit is not filed before the statute of limitations runs out, the claim is almost always barred or otherwise dismissed by the Courts. There is no one statute of limitations for all wrongful death actions because the statutes are based on the type of case filed. Let me explain. Going back to the examples given above, if the wrongful death claim sounds in medical negligence, then the statute of limitations is generally one year as it would be for any medical negligence case against a private health care provider. If the wrongful death claim is based on an alleged defective product or negligence, then the statute is generally two years. If the claim is against a government entity, then a government claim must be filed within 6 months or the claim will be barred by the Courts. An experienced wrongful death attorney should know which statutes apply. If you think you might have claim, you should consult with a lawyer as soon as possible so as to avoid any statute of limitations issues.
Please call Cutrone & Associates for a free, no obligation consultation where all your rights and remedies will be carefully reviewed and your options thoughtfully discussed with a skilled and experienced wrongful death attorney. In the meantime, if you have suffered the recent loss of a loved one, we understand how difficult and painful this can be and how devastated and numb you may be feeling. As soon as you feel you can, please contact an attorney to discuss your rights and remedies, always being mindful of the statute of limitations issues discussed in this article. Whether you call us or not, please know that our thoughts and prayers are with you.
