Sacramento Wrongful Death Lawyer
If you're reading this, it’s possible that you're in a state of deep grief or even disbelief that someone who was so loved and cherished in your life has been suddenly taken away. You feel as if your nightmare will never end, that you will never again breathe freely, that you have no energy and may wish to just stay at home and avoid dealing with the world. All this is normal, understandable and a tragedy.
For many of you, there was no inkling that this was coming. You had no opportunity to say goodbye. In other cases, the decedent may have been sick or having an operation and you may have shared warm embraces never intending them to be the last. In either case, someone you love has been wrongfully taken from you and others and it's important to take basic steps that your loved one would have wanted you to pursue. One of these steps is to consult an experienced wrongful death lawyer to investigate and pursue justice.
I know the grief can feel overwhelming and you'd like to postpone talking to a lawyer. However, the insurance companies are not waiting. They are doing all in their power to investigate and disclaim responsibility for the accident or the negligence of their insured. For that reason, its important to have someone on your side immediately...before key evidence disappears or is covered up.
Call me in Sacramento at 916-921-6400 or elsewhere at 800-404-5400. I'll see you immediately for a no cost consultation on the best way to proceed in this difficult time. You may also write me here.
Table of Contents
- What is Wrongful Death?
- Who Should Consult a Wrongful Death Attorney?
- Necessity of Quick Action.
- Damages Recoverable by a Wrongful Death Lawyer
- Helping a Jury Understand Your Loss and Damages.
Wrongful death is a legal term meaning a death that has been caused by the fault or negligence of another person or corporation. For example, deaths caused by drunk driving, the manufacture of a defective or dangerous drug or product, the construction of an unsound structure or building, the failure to diagnose a fatal disease , or a negligent medical operation may all be considered under the law as wrongful death claims.
I'm Ed Smith and as a Sacramento wrongful death lawyer I've been handling Wrongful Death Cases in Sacramento and throughout Northern California since 1982. You can look me up inYelp orAvvo, or read and listen to testimonials from past clients.
I have one of the largest practices in California handling Wrongful Death Claims. I am also the author of two books listed on Amazon including kindle. These books are entitled The Ultimate California Auto Accident Handbook and The Ultimate California Motorcycle Handbook .
Please call me in Sacramento at 916-921-6400 or elsewhere at 800-404-5400. I'll see you immediately for a no cost consultation on the best way to proceed in this difficult time. You may also write me here.
In California, wrongful death cases are governed by statute. California wrongful death law can be found in the California Code of Civil Procedure sections 377.60-377.62. This law governs wrongful death actions, including who may bring the case and the time limits in which to bring it.
In general, the people entitled to pursue a wrongful death claim are the following:
- A Surviving Spouse
- A Domestic Partner
- Children of the Marriage
- Any issue of a Deceased Child of the person who died
- Putative spouse or children of the putative spouse as well as stepchildren of the decedent so long as they were dependent on the decedent. (A putative spouse means someone who may not have been legally married according to the laws of California but who believed in good faith that they were legally married. This is not uncommon when immigrants come to the United States believing they were married in the customs of their countries, but finding that California does not recognize this custom as a legal marriage. However, under the wrongful death statute, California does recognize such marriages.)
- Any minor, whether or not a child of the deceased, who lived in the decedents household for for 180 days before the death, and for who the deceased provided at least 1/2 of support.
Again, you can reach me, Ed Smith, at 916-921-6400 in Sacramento or 800-404-5400 if you live elsewhere.
It is important to take action as soon as possible to find an experienced Sacramento Wrongful Death lawyer that you feel comfortable with. I have written elsewhere on how to find an experienced personal injury lawyer. You should make sure he or she has the expertise to handle this serious case, but even more important, you must feel comfortable communicating with this lawyer because you will be sharing sensitive and heartfelt experiences and recollections with him. If you don't feel comfortable, find another experienced attorney to represent you.
It's important to act quickly because insurance companies, hospitals, government entities and other people unfortunately act quickly to cover up, minimize or in other ways try to escape responsibility for the death. Witnesses disappear, marks in the road can be covered over, hospital records can change or disappear. It happens every day. Technically, you have 2 years from the date of death in most cases, but there are significant exceptions in medical malpractice, public entity and other cases.Do You Need a Sacramento Wrongful Death Lawyer?
If you have lost a family member due to the negligence or carelessness of another, an experienced attorney can help. Although an attorney can never make the pain of losing a family member go away, they can help you work through the issues a family faces after the unnecessary death of a loved one. Besides handling the legal aspects of the claim, he or she will be able to help you with local support groups, grief counselors, and books that may bring some comfort.
Although the loss of your loved one can never be satisfied satisfactorily, California law provides for “just" compensation to those who are entitled under the law to recover. The heirs of the victim may be awarded:
- Loss of future financial support
- Loss of inheritance
- Loss of companionship, comfort, affection, moral support, and if a spouse is suing, loss of consortium (romantic/sexual relationship)
- Loss of the victim’s care, training and guidance as a parent
- Loss of household services
- Costs of a funeral and burial
- Punitive damages may be recovered if the victim was killed as a result of Felony Homicide.
- Medical Expenses incurred before death can also be recovered in a "Survival action". The attorney will be able to explain this to you.
Here is the actual wording of the Jury Instruction given in California Wrongful Death cases:
Wrongful Death (Death of an Adult)
If you decide that [name of plaintiff] has proved [his/her] claim against [name of defendant] for the death of [name of decedent], you also must decide how much money will reasonably compensate [name of plaintiff] for the death of [name of decedent]. This compensation is called "damages."
[Name of plaintiff] does not have to prove the exact amount of these damages. However, you must not speculate or guess in awarding damages.
The damages claimed by [name of plaintiff] fall into two categories called economic damages and non-economic damages. You will be asked to state the two categories of damages separately on the verdict form.
[Name of plaintiff] claims the following economic damages:
The financial support, if any, that [name of decedent] would have contributed to the family during either the life expectancy that [name of decedent] had before [his/her] death or the life expectancy of [name of plaintiff], whichever is shorter;
The loss of gifts or benefits that [name of plaintiff] would have expected to receive from [name of decedent]; Funeral and burial expenses; and
The reasonable value of household services that [name of decedent] would have provided.
Your award of any future economic damages must be reduced to present cash value.
[Name of plaintiff] also claims the following noneconomic damages:
The loss of [name of decedent]'s love, companionship, comfort, care, assistance, protection, affection, society, moral support; [and]
[The loss of the enjoyment of sexual relations.]
[The loss of [name of decedent]'s training and guidance.]
No fixed standard exists for deciding the amount of noneconomic damages. You must use your judgment to decide a reasonable amount based on the evidence and your common sense. [Your award for noneconomic damages should not be reduced to present cash value.]
In determining [name of plaintiff]'s loss, do not consider:
[Name of plaintiff]'s grief, sorrow, or mental anguish;
[Name of decedent]'s pain and suffering; or
The poverty or wealth of [name of plaintiff].
In deciding a person's life expectancy, you may consider, among other factors, the average life expectancy of a person of that age, as well as that person's health, habits, activities, lifestyle, and occupation. According to [insert source of information], the average life expectancy of a [insert number]-year-old [male/female] is [insert number] years, and the average life expectancy of a [insert number]-year-old [male/female] is [insert number] years. This published information is evidence of how long a person is likely to live but is not conclusive. Some people live longer and others die sooner.
[In computing these damages, consider the losses suffered by all plaintiffs and return a verdict of a single amount for all plaintiffs. I will divide the amount [among/between] the plaintiffs.]Helping a Jury to Understand Your Loss.
Most cases involving the wrongful death of a loved one are settled out of court through negotiation, mediation or arbitration. Occasionally, however, the causation (or who is responsible) for the death is disputed by the defendant or by the defendant's insurance company and it is necessary to take a case to trial by jury to obtain a just result. Nonetheless, in every case, its critical to collect certain information from the family so that we can as accurately as possible show a jury or the defendant's insurance company the depth of the individual who has died, and the losses faced by the survivors.
Death of a Child
We will collect the child's school records, any honors or awards he or she has received, hobby and art projects, yearbooks, any writings and a copy of the guest book from the funeral. We'll talk to friends, classmates, teachers, coaches, ministers, neighbors and employers to obtain remembrances of how they recall your son or daughter. We'll talk to everyone on characteristics unique to your child. For instance were they a free-spirit, disciplined, bright, humorous, full of joy etc.? We'll find out what your hopes and dreams for them were.
We'll want to know about important dates such as birthdays, Christmas, Mother's Day, Father's Day, Thanksgiving, and other important dates and how they were celebrated in your family. We'll find out the life expectancy of your child at death, the role of your child in your family, the wishes and hopes you had for them, what your child's strengths were, if they engaged in any community work, any honors or awards they won and how the family is handling the grieving process.
We recognize that talking about the above can be difficult. We'll take in in stages as you feel willing to discuss these heart wrenching issues.
Death of Spouse
We'll ask about the length of your marriage, where you met and how, we'll want to find wedding photos, picture albums and travel folders. We'll discuss dreams you shared, ones you attained, one's that now will never be realized. We'll ask about losses and hardships you survived together We'll ask about your families of birth and the extended family activities you shared. We'll ask about your children and the relationships they had with each parent.
We'll explore the role of each of you in your marriage, special moments and future moments you looked forward to that will never be, as well as how you are experiencing the grieving process. We'll discuss the economic results of the death on you and on the family. We are sensitive to the fact that these issues may be difficult to discuss and we are here for you when you feel ready to discuss them.
Death of A Parent
We'll want to collect family albums and photos of your parent and the family. We'll need to find out about employment, the ages of children and the ages of the parents. We'll ask about the activities of each parent with each other and with their children.
We'll want to know how you and other family members found out about the death. We'll ask about your fondest memories of them, what they taught you about life and any wishes or dreams that will not be fulfilled. We'll ask how you're handling the grieving process. We'll ask about any difficult times your family has been through and how your parents handled such times We will be asking your help in drawing a portrait of what your dad or mom was like. How they lived and how they loved. We recognize you may be in deep grief now and unable to discuss these issues in depth. When you are ready, we will be here.
Death of a Sibling
We'll collect photos from your family album that demonstrate the life and activities you shared with your sibling. If the siblings are all grown adults, it is good to provide photos ranging from childhood to adulthood, including recent family gatherings. While the parents of the deceased may have a unique perspective of the the child they lost, siblings often will know details including the fears, dreams and desires that perhaps the deceased had not yet shared with their parents. Siblings often experience a more 'honest' relationship with each other and this helps add depth to the information collected from the parents. Additionally, children and parents will often view the same event in a totally different light. Your insights into the life of your sibling will be valuable to help a jury really get to know your loved one. In this way, a truly detailed portrait can be presented. It may not be possible to discuss these things right away or in one sitting. It is okay. Know that sharing these details helps us get to know your relative better and help memorialize their journey of life.
What is a Wrongful Death Claim?
Damages for wrongful death may be available for the wife, husband, parent, and child of the deceased person. Damages are available for the deceased’s estate as well. The claim can be made against the driver and/or owner of the car that caused the accident. If the other driver and/or owner of the car did not have insurance, an Uninsured Motorist Claim can be filed if this coverage exists.
Family members of the decedent can sue for the loss of companionship, loss of services, loss of income, and other losses. Typically, the settlement is shared by members of the family and the amount of each share is either agreed upon by the family members or decided by the judge.Why does it matter what you call the action? Why not sue for both?
Well, sometimes there might be very large medical bills and some insurance company or government entity may have a lien and have first claim on the money.
Decedent had final medical bills of $100,000 paid my Medicare. Lets say its a case against a negligent driver of a car who only has $50,000 in insurance coverage. Some attorneys sue for Wrongful death and survival only to find medicare's lien on the recovery leaves nothing left over. An experienced attorney will only file the wrongful death action on behalf the heirs. The heirs then recover the $50,000 policy and Medicare gets zero. ( Because a survival suit was not filed!)
Can heirs recover punitive damages against a driver who causes death?
It depends. Almost all insurance policies exclude liability for punitive damages so the auto insurer will not pay them. The driver himself, however, might have to pay such damages out of pocket if a case is filed against him and won. That presumes that the driver has enough assets to pay a judgment. We discuss this with our clients in every punitive damages case.
What areas does your law firm practice in?
We take cases throughout California, but most of our cases are filed in Sacramento, Placer, Yolo, El Dorado, San Joaquin and Solano counties.
If my loved one died in Sacramento, California, and I live in Sacramento, but they lived in another state, where does a wrongful death attorney file suit?
A wrongful death lawsuit must generally be filed either where the incident causing the death took place, or where the defendant in the case resides. If the incident causing the death occurred in Sacramento, that would be the correct place to bring the suit. Alternately, a suit could be bought against the “at fault” party where he or she lives.
If I live outside of California, and my loved one died in Sacramento, do I need a wrongful death attorney from Sacramento, or do I need one from my state?
Generally speaking the attorney handling the case must be licensed in the State where the case is filed, and generally speaking the case would be filed where the incident causing the death took place, or where the defendant in the case resides. If the injury occurred in Sacramento or if the defendant lives here, then that is where suit must be filed.
Can I sue for wrongful death if a loved one is killed by a drunk driver?
Cases where a loved one are killed by a drunk driver are tragic. In almost all such cases, there is a suit for wrongful death as well as for punitive damages.
Have you worked with nursing home fatalities?
Yes, our office can help with fatalities in nursing homes. California Wrongful Death statutes as well as Survival Statutes help the family obtain peace of mind after death of a loved one. If your loved one was neglected in a nursing home and later died as a result, we'd like to review your case.
Which lakes near Sacramento have the most fatalities?
In Sacramento, Folsom Lake experiences the most drowning fatalities each year although the American River experiences even more. Some people drown while swimming and other fatalities can happen because of boating accidents or other causes. Our office is experienced in all drowning fatality cases and will help if we can.
How long does it take to settle a wrongful death lawsuit?
Whether a lawsuit for wrongful death can be settled quickly depends on many factors.
If responsibility is clear, that makes a faster settlement more likely. On the other if negligence is disputed, many depositions may need to be taken and experts retained which will increase the time the case takes.
Another factor is how much insurance the negligent party had. If there is only a small sum of insurance, its more likely the negligent party's insurer will pay up earlier. On the other hand, if there's a large insurance policy or if a company is involved, their insurance will likely delay paying out as long as they can. Its important to have an experienced wrongful death attorney in your corner to keep the pressure on.
Another factor that can determine how long a case takes to settle is finding out the economic losses to survivors. If the person wrongfully killed had been working, experts need to be retained to calculate how much the decedent would have earned over his lifetimeas well as to evaluate the value of benefits and pensions.
An experienced sudden death lawyer will be familiar with all the above issues and will move the case to a conclusion as rapidly as possible.
What is the statute of Limitations for Wrongful Death in California?
Most of the time it is 2 years from the date of the injury or death (CCP 335.1)
However, if the Wrongful Death Claim is against a public entity or medical malpractice at a county or state hospital, a Claim must first be filed within six (6) months. Afterwards, additional actions must be taken,
Finally, if Health Care Provider Negligence resulted in a death (medical malpractice) CCP 340.5 Provides the Wrongful Death Claim must be filed either three years from the date of the injury or one year after the injury is discovered, or with reasonable diligence should have been discovered…whichever occurs first. This can be tricky, so it’s best to consult a medical malpractice attorney personally about time limits.
My son was killed in a motorcycle accident and even though he was not at fault, I am being told by the other insurance company that we cannot recover for his death because he had no insurance at the time. Is this true?
Normally California Civil Code Section 3333.4 precludes recovery by the driver of a car for pain and suffering damages if the driver did not have insurance at the time of the crash.
Insurance carriers often argue that the Wrongful Death Claimants of an Uninsured Driver or owner are also barred from recovery by the statute. This in incorrect even though many adjusters attempt to mislead on this issue.
The case of Horwich v. Superior Court (1999) 21 C.4th 272 states that even though the dead driver or owner had no auto insurance at the time of the collision, the Wrongful Death heirs can still recover their full damages. The purpose of the Code section was to punish uninsured drivers not their heirs.
Additional wrongful death FAQs may be found here.