Wrongful Death and Comparative Negligence

Brian O. Sutter's Wrongful Death Legal Blogs

Licensed for 34 years

Attorney in Port Charlotte, FL

Brian O. Sutter

Free initial consultation

Serving Port Charlotte, FL

  • Serving Port Charlotte, FL

  • Free initial consultation

Attorney at firm All Injuries Law Firm, P.A.

Serving Port Charlotte, FL

Free initial consultation

Awards AV Preeminent

Wrongful death is no doubt the most serious type of personal injury case processed in the court system, and many times they are also among the most strongly defended. Negligence is always the central issue of any injury lawsuit. The difficulties in arriving at a settlement regularly result from an insurance company claim that the decedent contributed significantly to their own demise by personal negligence, whether that is assumption of personal risk or major contribution to the accident by virtue of personal negligence. This is the legal theory of comparative negligence that is used in every state, but states vary concerning which type of comparative fault determination they use. All wrongful death cases are negotiated on this principle. The problem is that the value of a negligent death case is always high-value even though there is no established value on an individual life. Arriving at an equitable settlement amount is not necessarily a scientific process, and having a seasoned and experienced wrongful death lawyer can make a big difference.

Legal Standing to Sue

Determining who has legal authority to file a negligent death claim can be a contentious issue. The decedent estate is actually the plaintiff in a wrongful death claim, but the deceased plaintiff loses standing to sue when they pass away. This legal standing is then passed on to a close member of the family, an attorney, or a trustee who is assigned standing by the court. This legal authority can be contested in complicated cases when the victim has several family members who could potentially claim priority for the transfer. The court may issue a ruling, but many times consulting with a wrongful death lawyer is the best method to resolve any disputes. In disputed cases it is often best to let the estate attorney handle the case as they normally would and let the family make a decision after litigation begins.

What Can Be Included in a Negligent Death Claim

Personal injury claims can be added to the fact when the victim suffers for an extended period before actually dying from complications due to the accident, but sometimes the best decision is to file separate cases of personal injury and wrongful death. Loss of consortium claims may also be be available for members of the decedent’s immediate family, especially when the victim has a divided family with minor dependents in different households. This combination of conditions means that negligent death cases can be complicated in many respects. Personal injury components of a wrongful death claim include standard components of medical bill recovery and lost wages replacement as well as standard non-economic pain-and-suffering damages. Filing the claims separately means that at least a portion of recovery can be settled before the major claim of wrongful death is addressed unless the respondent or their insurance company acts in bad faith or forces the case to trial in combination.

Wrongful Death Case Trials

Either party to a wrongful death claim can choose to take a case to trial, which is a common step when certain factors are being argued. Respondent insurance companies will request a trial normally when they think they can prove that the decedent’s comparative negligence percentage will be high enough to bar them from receiving any damages. This is especially common when the respondents are attempting to avoid loss of consortium claims as well. In contrast, the victim’s attorney will also commonly request a trial when they think they can prove bad faith on the part of any respondent or could win punitive damages based on gross negligence and potentially egregious or intentional behavior on the part of the actual negligent respondent. Punitive damages are usually what makes the victim’s family financially whole following a fatal accident because damages tend to be exponentially higher than the standard personal injury case or the original calculated wrongful death claim value.

It is absolutely vital to have an experienced, comprehensive, and aggressive wrongful death lawyer when facing a negligent death claim. Negligent death claims can be very emotional legal undertakings and healing among the family is always a serious consideration. An experienced attorney will understand what can be claimed with success and how to maximize the value of the claim for the entire family.

Attorney Brian O. Sutter

All Injuries Law Firm

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