Suing for wrongful death is complicated. Here is a collection of topics on the subject.
Suing For Wrongful Death and Car Accidents
In the tragic event that a family member is killed in a car accident, you may be thinking of suing for wrongful death. This is a lawsuit against the party or parties who caused the death, filed on behalf of the members of the family who have lost the company and support of the deceased. Thus, a child might be entitled to compensation for the personal loss of a father as well as the amount of financial support the child would have received from the now-dead parent while a minor.
A wife would recover damages for the loss of her husband’s love and companionship and a lifetime of expected support, while a parent would be limited to damages for loss of companionship. A lawsuit for wrongful death may be filed by the executor or administrator of the estate of the deceased, or by family members.
Because statutes are frequently changed or modified by the State legislature and because different circumstances require that other statutes may be applied, the law can get quite complicated. For these reasons, it is highly recommended that you seek competent legal advice from an attorney who is well-versed on your specific situation.
Suing For Wrongful Death and Compensation
A wrongful death claim involves one family member coming forward to present claims on behalf of the deceased person for patient suffering and for claims of the surviving heirs. Legislatures throughout the country have imposed caps on “non-economic” damages, which may be lower than you think. For example, the cap on wrongful death claims in Oregon was only $200,000 for a very long time and has now been raised to $500,000. However, studies show that huge jury verdicts are rare, and that most injury victims are under-compensated. By misrepresenting the exceptional case as the norm, insurance companies have successfully protected their wealth at the expense of society’s most vulnerable injury victims.
The worst and most dangerous drivers often carry the lowest possible amount of insurance that the law allows, or carry no insurance at all. Few people would voluntarily allow themselves to suffer even a simple fracture of a bone, even for tens of thousands of dollars. Clearly, the loss of a loved one cannot be financially compensated at any amount, but they certainly don’t deserve a lifetime of negative after effects because of the skewed vision of the insurance industry.
If you have faced the loss of a loved one from a catastrophic injury, seek assistance from an attorney who has experience with this, and who knows how to find every possible source of recovery. Insurance companies may try to take advantage of your vulnerable state by offering a ridiculously low amount. Don’t let them get away with it. Do not sign or record any statement for an insurance adjuster before consulting an attorney. Most importantly, remember that delay can be costly. Time is of the essence.
Wrongful death tort claims can be complicated. I have handled many of them over the years. It is critical to make sure the tort claim notice requirement is always followed. In 20 years of handling Oregon wrongful death litigation and settlements, I am aware that the other crucial aspect of these cases is obtaining the right experts to testify in these cases. It can make a big difference in recovering the maximum amount of damages allowed by law.
Steps in a Wrongful Death Car Accident Case in Oregon State
The person’s spouse, parent if unmarried, or other guardian or representative in a probate action, should file a Petition to Appoint Personal Representative.
Letters testamentary should be sent to the injury lawyer and other lawyers so that the wrongful death case can go forward.
The injury lawyer should be pursuing the wrongful death claims if the probate lawyer is on board.
Notices should be sent to the heirs of the deceased car accident victim.
The injury lawyer files the car accident lawsuit or settles the wrongful death case by mediation or arbitration.
Notice of the settlement of the car accident injury or wrongful death claim sent to the heirs of the victim.
The heirs come to an agreement regarding the division of injury settlement or litigation result in the wrongful death case. If no agreement is reached, the alternative is a probate hearing regarding division of settlement monies received.
Probate court approval of wrongful death case is received. Proceeds/settlement divided out and monies sent.
Closing receipts filed with court as the case is concluded.
Summary: Wrongful death cases are complicated and difficult especially for the family of the car accident victim. In any wrongful death, consultation with an injury lawyer is recommended to ensure the steps on successfully resolving a wrongful death case are met.
Highway deaths and Oregon Tort Law
In 2012 the NHTSA reports that car accident highway deaths as of 2011 are at a historic low of 3,367. This is the lowest figure since 1949.
The lower highway wrongful death statistics can be attributed to several factors. For instance, the current requirements for new cars, such as side impact airbags and stability control devices, have gone a long way towards making cars much safer. Stability control devices alone have saved 2200 lives in just the last three years. The increased aggressive enforcement of drunk driving laws, as well as people driving less due to the recession, have also had an effect on the number of highway deaths over the last few years. The trend is similar for Washington State with regard to a lessening of car accident fatalities.
As mandatory safety features are added, and laws more vigorously enforced, the death toll should continue to decrease.
Wrongful Deaths Involving Un-belted Drivers – Oregon’s Track Record
In 2010, Oregon drivers came in fourth nationwide when it comes to compliance with seat belt usage requirements while driving. Oregon’s “click it or ticket” law has been highly effective in reducing the number of injuries and deaths caused by not wearing a seat belt.
In fact, this jives with the nationwide reduction in car crashes involving unbelted passengers, which has been decreasing over the years. These types of accidents have been consistently declining, with a significant difference even just between 2009 and 2010. According to the Department of Transportation statistics, there has been a phenomenal reduction in the number of deaths and injuries from unbelted drivers since the 1950’s.
Wrongful Death Injury Claims Where One of the Drivers is the Deceased
In Oregon, whether the car accident occurred in Bend, Salem or any other town, a wrongful death attorney will need to arrange to have a personal representative appointed for the deceased person.
Even if the deceased person is the driver of the other vehicle, the defendant in the case, it may be necessary for the lawyer to get a representative appointed for them if they died in the crash. This is because a lawsuit cannot be filed against the driver until they have an open estate and a duly appointed personal representative.
Car Accident Involving a Police Car – Death or Injury
In an officer-involved car accident, important laws come into play when presenting any personal injury case or wrongful death case. Under Oregon law, the individual police officer is given a form of immunity for actions like driving their police car in the scope and course of their duty. Whether the police department is immune is another question, as it depends on whether the police department’s guidelines were followed in any particular case.
It is important to consider whether a law enforcement officer was involved in a pursuit at the exact time of the crash. In most situations involving a police chase, the officer will be given full immunity unless they committed wanton and willful acts. Any other cars involved in the chase or who were in a crash due to the chase, do not have this immunity and would be considered on an individual basis. Oregon law now requires that all drivers pull over into an outer lane away from a police stop if it occurs on a two way road.
Lastly, note that a short notice to the state or county or lesser governmental unit is mandatory. Not providing notice may void your case and whatever compensation you could have received.
Suing For Wrongful Death and Trains
Each year many people in Oregon State are killed by freight trains or passenger trains. If the train accident does not result in death, it generally results in severe injuries, and frequently in loss of limbs. In the case of a death or injury accident involving a train, the ERISA (Employee Retirement Income Security Act) may apply. ERISA is a 1974 federal law which deals with employee retirement benefits.
Accidental death policies under ERISA often exclude or deny coverage when a death is due to, or results from, committing or attempting to commit an assault, felony or other criminal act. Skilled railroad lawyers often try to show that the deceased person was trespassing on the railroad tracks when they were killed. In my opinion, in any ERISA case, it is important to get an attorney early on in the case before evidence and witness memories fade.
Suing For Wrongful Death and Teen Car Accidents
Having done personal injury car accident work and litigation for many years, each summer I see tragic car accident cases involving the death of minors and teenage kids. These incidents frequently involve alcohol. Motor vehicle accidents are the number one cause of death for teens in America. They result in the loss of nearly 6000 young lives and injure another 300,000 teens every year.
When a wrongful death car accident case occurs in the State of Oregon, one parent or guardian is appointed to pursue the case, whether as a personal representative or the estate executor. In any wrongful death case, if the parents are divorced or separated, either parent can take the lead on the case in terms of getting appointed as the personal estate representative or executor. Because of this, wrongful death cases can often turn into a race to the court house. Parents of deceased teens and minors are entitled to compensation for their loss. If the parents are divorced, that compensation is frequently based on the facts with regard to the degree of involvement they had in their child’s life, or the amount of time spent with them. However, I have been directly involved in cases where one parent has had little contact with a child who dies in a car accident but recovers money due to having been quicker to take the lead.
Loss of a child in a car accident is a tragic event and having an understanding car accident injury lawyer may ease the burden such a loss presents.
Other Causes of Wrongful Death Claims – Pool Injuries and Children Drowning
Every summer we hear tragic news of children who drown or suffer serious brain injury from being submerged under water in pools. Often with pool related brain injury cases, the kids will have long term cognitive speech and learning issues from the traumatic brain injury.
Anytime a child suffers a pool related injury, liability will usually rest with an adult as children under 18 must be supervised. Pool drowning cases are fact specific and negligence is generally shown by expert testimony. Pool drowning cases may involve many complicated issues, such as questions of where the adult was at the time of the incident, and of the child’s ability to swim without an adult in the pool.
Recently we had a near drowning in a pool at a day care facility. The day care child suffered severe brain damage and we recover a large confidential settlement. On any case involving children under 18 a conservatorship must be filed if the settlement exceeds $10,000. A conservatorship is a blocked minor’s trust account where no one gets the settlement monies until the child reaches 18 when the monies are disbursed.
Want to talk to me about your case?
I am sorry for your loss. I want to help you get all the money you deserve for your wrongful death claim so call me at 503-280-0888 now or please fill out this short form.
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