Wrongful Death Questions

What is a "wrongful death" case?

A wrongful death is a fatality that results from the negligence of another. It can also result from a criminal act, such as a homicide. A wrongful death case may be associated with another type of negligence claim, such as medical malpractice, when a death results.

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How is a wrongful death case different than other types of negligence cases?

One essential difference is that the parties who sue are not the ones who have suffered physical injury. They must be brought by what is known as the Personal Representative (PR). This will be someone representing the estate of the deceased person. The PR has to be appointed by the court having jurisdiction. Usually, this is a family member or relative, but it can be an attorney.

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What happens if an injury case is already pending and the person dies?

This is called a survival action. The claim survives the death of the person who originally made the claim. In this case, any damages collected become part of the estate of the deceased. The claim can be amended to include pain and suffering, funeral expenses and other items that occurred between the original lawsuit and the resolution of the case.

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What if a child dies?

In the case of a wrongful death of a child, a surviving parent may recover for the destruction of the parent-child relationship and/or loss of consortium (but only if the parent was supporting the child before death).

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What can be recovered in a wrongful death case?

Generally, the type of damages which may be recoverable will depend on the survivor and his or her relationship to the deceased. The estate of the deceased may have a claim for future lost earnings the decedent was expected to receive over the decedent's life expectancy. The estate may also recover for pre-death pain and suffering experienced by the decedent.

In the case of a surviving spouse and/or child, damages may be recovered for loss of consortium, loss of financial contributions expected from the deceased, and destruction of the parent-child relationship. The job of determining and calculating damages caused by the wrongful death of a person can often be complex and time-consuming. Often, experts are necessary or at least recommended to assist in calculating all of the damages caused to the estate and/or the surviving beneficiaries of the estate.

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What if the death happened at work?

Typically, you will be limited to using the workman's compensation system when an employee is killed in a work-related accident. However, it depends on whether the death is due to actions by the employer or another entity. For example, if a trucker is delivering goods and kills an employee by running over them, the negligence flows to the delivery company and wouldn't fall under workman's compensation rules. These can be complex cases and should be reviewed by an attorney.

An exception is when the employer's actions were grossly offensive. In this instance, punitive damages may be awarded beyond the normal limits.

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What about the death of an infant?

A miscarriage or death of an unborn fetus can be handled as a wrongful death in Montana. According to the Montana Supreme Court, a fetus is a "person" under the wrongful death statutes. After a live birth, the infant falls under the same rules as a child.

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What if the person who died didn't have a job, can lost wages still be collected?

Yes, if the person could reasonably have been expected to contribute to the family sometime in the future.

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What if an elderly person dies?

If the death was due to negligence, it doesn't matter if they were elderly. Loss of what life they had remaining is still grounds for a lawsuit. Damages may be calculated differently, but the loss of companionship and emotional harm to survivors still has a value.

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What about a homicide or manslaughter?

A criminal case is always and only brought by the government. This is separate from a civil case for wrongful death. There are also different standards of proof. Perhaps the most famous case is when OJ Simpson lost his wrongful death suit even though he wasn't convicted of murder. The cases may even run in parallel, the result of one does not impact the other.

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