| Wrongful Death FAQs
What are the elements of a wrongful death
claim?
When must a lawsuit for Wrongful Death be filed?
Who can file a wrongful death claim?
Who receives the recovery of the Wrongful Death
damages?
How are the future damages calculated and what is
"Present Value?"
When are Punitive Damages available?
What are the elements of a wrongful
death claim?
Like other personal injury claims, the plaintiff (the party
bringing the claim or lawsuit) has the "burden of
proof." This means that there must be evidence tending to
establish each of the elements necessary to legally prove the
claim. These include proof that: (1) the death was caused, in
whole or in part, by the conduct of the defendant; (2) the
defendant was negligent or otherwise liable for the victim's
death; (3) there are one or more surviving beneficiaries (more
on that, later); and (4) the victim and/or survivors have
incurred one or more of the elements of damages listed above.
It is necessary to prove not only that the defendant was
negligent or otherwise legally at fault, but also that the
defendant's conduct was the proximate cause of the death of
the victim. "Proximate cause" is that cause, but for
which, the victim would not have been killed.
Thus, where a defendant negligently runs a stop sign
causing a collision, the victim dies of wounds clearly
suffered in the collision, the first two elements are easily
proved. However, where the victim subsequently dies from a
cause unrelated to the collision, there is no claim or action
for wrongful death damages.
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When must a lawsuit for Wrongful Death
be filed?
Each state has its own "statue of limitations,"
which defines when a lawsuit must be filed. The failure to
resolve a claim or file a lawsuit before the end of this
limitations period will forever bar the right to recover at
all, with few exceptions. Even an otherwise valid claim may be
barred if filed after the statute of limitations has run. It
is therefore important that you consult a qualified personal
injury lawyer at your earliest opportunity in order to
preserve these important rights. Early legal consultation can
also help preserve evidence, or locate witnesses, that may be
needed for a successful claim.
In North Carolina, there are several limitations periods
which have a bearing on wrongful death claims.
In general, a wrongful death claim must be filed within two
(2) years of the date of death of the victim. However, in
cases where the victim is injured, but does not die within two
(2) years of the date of the accident or other event causing
injury, the claim must be filed within the time allowed for
the victim to have filed a personal injury claim, usually
three (3) years from the date of accident or other
injury-causing event.
Where the fatal injury was caused by a defective product
(products liability) or by medical negligence (malpractice),
other limitations periods, called statutes of repose, may also
operate to bar the claim.
If the fatal injury was caused by a defective product, the
claim must be brought within six (6) years of the date the
product was first sold for use or consumption. Thus, if the
product in question was more than six years old when the fatal
injury occurred, a claim can be barred by the statute of
repose even though it is brought or filed within the two years
statute of limitations.
If the fatal injury was caused by medical negligence, the
two-year limitations period from the date of death will apply.
However, if the victim lingers, the claim must be brought
within four (4) years of the last act of the negligent health
care provider. Thus, where a negligent doctor continued to
treat the victim for one year following the negligent act or
omission giving rise to the claim, after which the victim
died, the claim must be brought within two years of the date
of death, but not longer than four years from the last date
treatment was provided.
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Who can file a wrongful death claim?
In North Carolina, no matter who the beneficiaries or
survivors are, only the "personal representative"
(Administrator or Executor of the estate of the victim) may
bring the claim. If the victim dies "intestate"
(without a will), the Court will appoint an administrator of
the estate who has the exclusive right to file the claim. If
the victim dies "testate" (with a will), the
Executor named in the will, once approved by the Clerk of
Court, has the exclusive right to file the claim.
There must be an administration of the estate of the
victim, even if the victim died without assets of any kind.
In the absence of a will, the law establishes priorities as
to who is entitled to serve as personal representative. A
person qualified to serve may not want to, and may
"renounce" his or her right to serve in favor of
someone with equal legal standing or, if there is no such
person, someone next in line of priority.
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Who receives the recovery of the
Wrongful Death damages?
Even if the victim died with a will, the persons who actually
receive the monetary damages recovered are the persons who
would inherit had the victim died without a will, as
determined by the North Carolina Intestate Succession Act,
NORTH CAROLINA GENERAL STATUTE §§29-1, et seq. In this, the
law makes no distinction between heirs who were particularly
close to the deceased and those with whom the deceased may
have had strained relations.
In the usual case, survivors include a spouse and one or
more children. In the case of a spouse and one child, each
gets one-half of the recovery. If there are two or more
children, the spouse gets one-third of the recovery and the
children share the remainder equally. If there is no spouse
and/or no children, the law then looks to the surviving next
of kin. A qualified lawyer should be consulted if there is a
question about who is entitled to share in the recovery.
Wrongful death damages recovered are NOT assets of the
estate of the decedent and, with the exceptions set out in the
Wrongful Death Act, are not subject to being used to pay the
debts of the victim. The exceptions to this rule, provided by
the Wrongful Death Act, are some of the medical expenses
associated with the fatal injury or illness and reasonable
funeral expenses.
If any of the survivors who are entitled to receive a
wrongful death settlement are minors, or if all adult
beneficiaries do not agree to the settlement, then the
personal representative must seek the approval of the Court
before finalizing any settlement.
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How are the future damages calculated
and what is "Present Value?"
Recovery of wrongful death damages, whether by settlement or
court judgment, is calculated at one time and must include not
only those losses and damages incurred as of the date of
resolution of the claim, but also those damages to be suffered
in the future because of the death of the decedent.
As seen above, some of the elements of damages include the
loss of these "future damages," which must be
reduced to their "present value." This law envisions
that a dollar received today is worth more than a dollar
received ten years from today.
The General Statutes contain a life expectancy or mortuary
table which has the average life expectancies of persons
having reached certain ages. The shortest applicable life
expectancy is used. Thus, if the decedent was older than his
or her survivors, his or her life expectancy will be used.
However, if the situation is reversed, as where the decedent
was a child survived by one or more parents, then the life
expectancies of the parents or survivors will be used.
The decedent's "work life expectancy" will be
used to determine the value of his or her lost future income.
This is typically the difference between the age of the victim
at death and the age at which he or she would normally be
expected to retire or stop working. The decedent's life
expectancy is used to determine over what period of time
personal services would have been rendered by him or her to
the beneficiaries. With aging, these services change.
There are several ways to reduce these future damages to
present value in today's dollars. Usually, this involves
computation of the stream of income in the future, taking into
account such things as reasonably expected pay raises,
promotions, union contracts, benefits, etc. This stream of
income is then reduced, using the known effects of inflation,
personal consumption, etc. Technically, the "present
value" of future losses is the amount of money it would
take, in today's dollars, to replace the lost future income or
services and create a new stream of income over the applicable
life expectancy so that, ideally, the beneficiaries have, in
money, that which they have lost due to the wrongful death.
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When are Punitive Damages available?
Punitive damages are not awarded to compensate anyone. Rather,
they are used to punish the wrongdoer and to set an example to
others that certain conduct will not be tolerated. As a
result, punitive damages are not recovered unless there is
proof that the defendant's misconduct amounted to malicious or
willful or wanton, negligence.
Punitive damages have been greatly restricted in North
Carolina.
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For more information, please see our
Wrongful Death page.
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