Georgia Wrongful Death Claims
A wrongful death claim in Georgia can be quite complicated and confusing for the loved ones attempting to file a claim and even poses unique challenges and areas for error for seasoned trial lawyers. What follows is a guide for both groups to understand as much as possible about the ins and outs of a wrongful death claim in Georgia.
BE CAREFUL—THERE ARE POTENTIALLY TWO DIFFERENT CLAIMS
A wrongful death claim in its broad sense in Georgia arises when a loved one dies from injuries sustained as a result of the negligence of another. What is not as widely understood is that there are two unique set of claims that a specific set of claimants have arising out of the death of a loved one: First—what is known as the traditional wrongful death claim; and Second — a separate claim by the estate of the deceased.
The Wrongful Death Claim—– Again this is what is known as the traditional wrongful death claim. In Georgia, this claim is for the value of the life of the deceased taken by the negligence of another. More on how this claim is determined later.
The Estate Claim —- This claim can only be filed by the estate and it is not for the value of the life of the deceased but instead any expenses the Estate has incurred resulting from the injury and death, as well as pain and suffering. More on damages the Estate can pursue later.
WHEN MUST THESE CLAIMS BE FILED?
This is called the statute of limitations. In Georgia, all persons and/or an estate with a claim arising out of the death of a loved one usually must file suit against the at-fault party or parties no later than two years after the death. Depending on the nature of the claim, the time limit may be longer or shorter.
Here is where it could possibly get tricky for the uninitiated. What if the your loved one survived the initial accident or other incident that led to his or her injuries and then died days, weeks or months later. The statute of limitations in such situations is most often calculated from the date of the negligent act giving rise to the injuries sustained by your loved one. Not when your loved one ultimately died from his or her injuries. Obviously this is not a huge issue if the span of time between the incident and the death is a matter of days but certainly could become problematic in situations where your loved one survived for months before ultimately succumbing to his or her injures.
BE CAREFUL HERE. You do not want to wait too long to hire a wrongful death lawyer to pursue your claims.
WHO CAN FILE THE WRONGFUL DEATH CLAIM IN GEORGIA?
It depends on who the survivors are. Georgia law sets up a hierarchy of relatives who have standing to sue for the wrongful death of a loved one. The hierarchy is as follows:
Spouse and Children: If your loved one is survived by a spouse then the spouse has the right to file suit for wrongful death. If your loved one is survived by a spouse and children then the spouse must file on behalf of himself or herself and the children. The spouse and children then split the award 1/3 to the spouse and the rest split amongst the children in the typical scenario.
Children: If your loved one was not survived by a spouse, then the children of the deceased have the claim and right to file suit. They would then split the award evenly.
Parent:I f your loved one was not survived by a spouse or children then any surviving parent has the claim and right to file suit.
Estate: If none of the above have survived, then the Estate has the wrongful death claim and holds the benefits of that claim for whomever is the next of kin under probate law.
The determination of who has the claim and right to file suit is determined at the time of death not at the time of the injury. It is a rare instance where this comes up but you can see the potential issue if a surviving heir who otherwise has the claim dies after injury to the relative but before the relatives death. You can read this California wrongful death guide to see how the law may apply different there.
WHAT TYPE OF DAMAGES ARE RECOVERED IN THE WRONGFUL DEATH CASE?
For the wrongful death claim, the recovery is the full value of the life of the deceased. Sounds simple enough but it can get complicated quick and is exactly why anyone contemplating a wrongful death claim in Georgia should consult with an experienced wrongful death lawyer.
There are two factors a jury can take into consideration, at their discretion, in arriving at what is the full value of the life of the deceased. Before we discuss each, it is important to remember that in Georgia, the full value of the life of the deceased is viewed not from the perspective of what the value of the deceased’s life was to the surviving relatives but the full value of the deceased’s life from his or her own perspective. In other words, what is the value lost by the deceased in not living out the rest of his or her life (i.e. missing raising his or her children; life with his or her spouse; other activities and enjoyments of daily life missed; income potential he or she lost). Not the relatives loss of enjoyment with the deceased.
The first factor a jury can take into consideration in arriving at a value of life is all economic loss due to the cutting short of his or her life. For example, if the deceased had a salaried position and was making $100,000.00 a year and was 35 at the time of his or her death, the jury could hear evidence of how many more working years the deceased had left times $100,000.00 a year. In addition, the deceased may have been receiving 401K matching benefits or yearly bonus etc. All of this is the economic impact of the loss. The jury does not have to take these figures into account but they can.
The second factor a jury can take into consideration in arriving at a value of the life is the non-economic loss. The jury can take this factor into consideration along with the economic factors or without the economic factors. Here, the evidence of value is the loss of enjoyment of the rest of the deceased’s natural life. Again, this would include a determination first of the life expectancy of the deceased. Then the jury hears evidence from relatives and friends of how the deceased lived his or her life. What they liked to do. Who were they taking care of etc. How healthy were they.
WHAT TYPE OF DAMAGES ARE RECOVERED BY THE ESTATE?
The Estate claim is first and foremost for all expenses associated with the injury and death of the deceased. This includes ambulance charges, any medical expenses, funeral expenses and any other out of pocket expenses necessitated by the injury and death.
The Estate may also have a claim for the pain and suffering inflicted on the deceased upon being injured and before death. This claim can get very factually complicated and often needs an expert opinion for support. Clear cases would be those where the deceased survived for hours, days, weeks or months before succumbing to his or her injuries.
The difficult but not impossible pain and suffering claim is where the deceased died within second or minutes of the injury. The question becomes a medical one of whether the deceased experienced pain before death from the mechanism of injury. We have had cases where upon first presentation it looked like there would be no pain and suffering because death appeared to be instantaneous. However upon questioning the medical examiner it was revealed that autopsy findings indicated that the deceased survived seconds or minutes after the incident.
HOW TO GO ABOUT PURSUING THE ESTATE’S CLAIMS?
You have determined that the Estate has claims. Maybe it is just the expense claims. Or maybe there is pain and suffering before death or no one to pursue the wrongful death claim other than the Estate. What do you have to do next to pursue the Estate’s claims?
The first step is to set up an Estate. Does your loved one have a Will that nominates someone to be the executor or executrix of the Estate? If so, it would be best for this person(s) to file the necessary petition to establish the Estate.
It is best to have an estate lawyer help you in filing the petition to set up the Estate and guide the Estate through the process. This is especially so if there are large debts owed by the deceased that will need to be paid by the Estate and/or the Estate’s claims in the wrongful death action are large.
If there is no Will or the nominated person in the Will does not want to be the executor or executrix, someone else needs to step forward as the person to file the petition to establish the Estate. Without an Estate established, no one can pursue the claims of the Estate in the wrongful death action. If there is no Will, either the petitioner or someone else must be elected and approved by the probate court to be the administrator of the Estate.
Once an Estate has been officially established in the county where your loved one lived before death, the representative of the Estate becomes the plaintiff for the Estate in any claims on behalf of the Estate. The way this looks is “So and So, as administrator of the Estate of Your Loved One.” Going forward, it is this representative that has the power to hire a lawyer to represent the Estate in the claim and ultimately is the client who has the right to resolve the claim. Obviously such power is for the benefit of the Estate and any resolution must be in the best interest of the Estate and thus the heirs of the Estate.
At Boling Rice LLC, we have several full time Estate lawyers on staff that establish estates and represent estates in courts throughout Georgia. This makes it seamless for our clients when hiring us to pursue a wrongful death claim. We do not have to delay moving the matter forward to hire an outside lawyer to represent the Estate in probate court or risk making a mistake in probate court as personal injury lawyers trying to represent the Estate in probate court where we don’t have the necessary expertise.
WHAT DO WRONGFUL DEATH ATTORNEYS CHARGE?
Wrongful death lawyers in Georgia typically handle these cases on a contingency fee basis. This means you owe nothing up front to hire an attorney to handle your claims and you do not owe any attorney’s fees as the claim is being pursued.
Instead the attorney is paid upon the successful conclusion of the case whether that is a settlement or a verdict obtained after the trial of the matter. Most contingency fee arrangements in Georgia are thirty-three and one-third percent of all amounts recovered if the claims are settled before suit is filed and forty percent of all amounts recovered after suit is filed.
Sometimes these contingency fee figures are increased due to the complexity of the matter. For example, many firms will increase the contingency rates for wrongful death matters involving medical malpractice matters or very complicated and risky premises liability matters.
In addition to the contingency fee arrangements, there are expenses involved in pursuing the claim. For example, it costs several hundred dollars to file a lawsuit in counties throughout Georgia. It costs several hundred to a thousand dollars or more to take the deposition of a witness in the case.
Most attorneys will cover the expenses up front and be reimbursed for these expenses covered for the client at the end of the case in addition to the contingency fee. This allows the client to pursue the claim without having to worry about the financial burden of the claim.
Some firms will require expenses be paid by the client on a monthly basis as they are incurred throughout the wrongful death matter. Often this depends on the riskiness of the claim.
INSURANCE COVERAGE ISSUES IN WRONGFUL DEATH CLAIMS?
Insurance considerations are important in any personal injury matter. Without insurance coverage there is often little point in pursuing the at-fault party. Digging deep to uncover the identity of all responsible parties and what insurance may be available is one of the main tasks of a good wrongful death lawyer.
Of all the types of wrongful death cases, car, truck and motorcycle claims are the most important ones to pay close attention to insurance coverage issues. This is yet another reason why it is vital to hire a good wrongful death attorney to handle your claims.
One of the most important things to look into insurance wise in a wrongful death motor vehicle accident case is what is called UM insurance. Everyone knows to look at the insurance coverage for the at-fault driver. However, what many do not realize is that your loved one’s insurance may provide additional coverage above and beyond that available from the at-fault driver.
Moreover, we have come across several instances where loved ones were told that there was no UM insurance and then when we entered the case, we were able to uncover UM insurance that did apply. In one instance, under Georgia law, we were able to turn what everyone thought was $100,000.00 of combined UM insurance coverage for the family into $1,000,000.00 in UM insurance coverage.
Had the family handled the matter on their own, they would have taken the insurance company at its word that there was only $100,000.00 in coverage and settled for that amount. We were able to get the family 10 times that number.
We have been handling wrongful death claims for families of loved ones for over half a century. Our experienced wrongful death attorneys and support staff are here to help families suffering from the sudden and tragic loss of a loved one at the hands of a negligent party. Feel free to give us a call at (770) 744-0890 if you have any questions about your potential wrongful death claim or would like us to review your claim for consideration.