Wrongful Death

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It’s extremely difficult for anyone to lose a loved one. When the death is due to the wrongful conduct of another, the pain can be overwhelming. While you are still grieving your loss, you’ll also have to make many difficult changes as you adjust to a life without someone who mattered. Fortunately, the law does provide means for your family to get financial help during this difficult time.

We understand how tough it is for family members to come to terms with filing a wrongful death lawsuit after losing a loved one. But please keep in mind that a delay could affect you or your family members’ legal rights. Generally, the statute of limitations in Pennsylvania and New Jersey allows up to two (2) years from the date of death to file a lawsuit for wrongful death or survival claims. Don’t wait until the last minute. Get a skilled and compassionate attorney from Flager & Associates on your side today.

Wrongful death claims can be exceptionally legally complex. Follow the links below to learn more about the legal implications of wrongful death:

• Difference Between Wrongful Death Claims and Survival Claims
• Types of Damages
• Determining Responsibility

No amount of money can bring your loved one back, but compensation can make it easier for your family to move forward after a loss. Let us be your advocate during this difficult time. Contact Flager & Associates, PC. Call (215) 953-5200 today. Remember, your initial case evaluation is free, and you don’t pay us unless you win.

Difference Between Wrongful Death Claims and Survival Claims

Both Pennsylvania and New Jersey have wrongful death laws to provide a cause of action for losses incurred by family members of the deceased who are defined as beneficiaries – generally, the spouse, parents or children of the deceased. Those beneficiaries can seek compensation for the monetary loss suffered by them from the death of the deceased family member, as well as the loss of support, society, companionship, service, guidance and nurturing the deceased person would have provided to the beneficiaries over the course of his or her expected lifetime.

Additionally, both states have Survival Acts which allow the estate of the deceased to make a claim for any pain and suffering that the decedent endured up to the time of their death. In other words, while a wrongful death claim is made on behalf of the beneficiaries of the deceased, a survival claim is made on behalf of the deceased person.

The two distinct claims also have different tax consequences upon the receipt of any compensation. Since a wrongful death claim belongs to the designated beneficiaries, any monies received by those persons are not subject to estate or inheritance taxes or any creditors of the deceased person. However, funds received in a survival case would be distributed out of the deceased person’s estate, subjecting them to any applicable estate or inheritance taxes and any claims of creditors of the deceased person.

Each case is factually unique and requires the evaluation of an experienced attorney to determine all of the nuances associated with either a wrongful death or survival claim. Additionally, the apportionment of any settlement or award from a wrongful death or survival claim can be quite complex and, depending on the division between the two claims, could have significant tax consequences for the beneficiaries.

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Types of Damages

Damages in a wrongful death case are meant to compensate for losses resulting from the death of a family member. In general, damages can be categorized into one of two groups. There are damages that can be objectively measured by specific, clearly determined costs, such as medical bills, loss of income and funeral expenses. And then there are subjective damages that call for the experienced legal advocacy of a wrongful death case attorney.

“Objective” damages may be calculated by costs such as ones mentioned above, as well as loss of benefits, such as employer-provided health insurance, that must now be paid out-of-pocket

“Subjective” damages are based on other, less specific determinations, such as:

• Emotional trauma of the survivor’s family members
• Pain and suffering endured by the deceased
• Punitive damages, should the cause of death be found to be especially egregious

Pennsylvania law allows you to recover damages for emotional distress to the extent a jury finds it fair and just in relation to the injury resulting from your loved one’s death.

New Jersey’s Wrongful Death Act does not allow for recovery for emotional distress caused by the death of the victim. A separate tort action for the negligent infliction of emotional distress is required.

Calculating damages is complex. Some factors used in the process include:

• How dependent the plaintiff (the person filing a lawsuit) was on the decedent (the person who died)
• The anticipated earnings and other benefits of the decedent
• The anticipated lifespan of the decedent
• The nature of the relationship between the plaintiff and the decedent
• The presence of any comparative fault

At Flager & Associates, PC, we can help you sort through this complex matter. Unfortunately, many insurance companies look at even a tragedy as an opportunity to save money. We’ll carefully investigate your case and fight tirelessly for all of the compensation your family needs.

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Determining Responsibility
Someone can only be held responsible for a wrongful death if it can be proved that his or her conduct was the cause of the death. Put another way, it must be proved that the death would not have happened were it not for the responsible party’s actions.

For instance, to prove a drunk driver at fault for a death during an accident, there needs to be proof that the driver was intoxicated and that his or her impaired driving caused the death. The time between the action of the defendant (that is, the person being sued over the wrongful death) and the death of the decedent (the person who actually died) is not a factor as long as there is proof that the defendant’s action was the cause of death. For instance, even if the decedent died a year after the accident, the drunk driver could still be found responsible if the death was due to injuries suffered during the accident.

In some cases, the decedent turns out to be partially responsible for his or her own death, leading to comparative or contributory negligence. Dependent upon the state in which the incident occurred, damages may be awarded based on the percentage of negligence imputed to the decedent. For instance, if the decedent was 40 percent responsible for the death, the damage award may be reduced by 40 percent.

Also, if the death was due to the decedent’s failure to seek appropriate medical care, there may be no grounds for a wrongful death claim or a reduction to an award.

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