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Wrongful Death


NAVIGATING WRONGFUL DEATH SUITS: A STEP-BY-STEP SURVIVAL GUIDE



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When tragedy strikes and a loved one’s life is wrongly taken, you may wonder
about your rights in pursuing a wrongful death suit. These suits enable families
and dependents to hold responsible parties financially accountable for their
negligence or intentional acts. This article cuts through the complexities to
give you an actionable guide on wrongful death suits, including who can file
such a claim, the proof required, and the legal steps involved. Navigating the
legal process for wrongful death claims may seem overwhelming, but it can be
more manageable with the right guidance from the experienced lawyers at Fosters
Law.


UNDERSTANDING WRONGFUL DEATH SUITS

To begin, we need to define a wrongful death lawsuit. A wrongful death occurs
when a person or entity causes the death of a person due to their negligence,
deliberate actions or malpractice. A wrongful death claim is a civil lawsuit
seeking compensation for this loss. This means that if a loved one’s death was
due to someone else’s negligence, intentional acts, or medical malpractice, you
can seek justice through a wrongful death claim. It’s crucial to note that
wrongful death claims are civil lawsuits and not criminal cases; they are filed
in civil court to obtain financial compensation for the loss of a loved one and
the financial support they would have provided had they survived.

Next, we will explore the three common causes of wrongful death claims:
negligence, intentional acts, and malpractice in more depth. Understanding these
categories will help you identify the type of claim you might be dealing with.


NEGLIGENCE

Negligence is the failure to act with ordinary, reasonable care. Most wrongful
death suits arise where a person dies because of another person’s negligent
actions. Some examples of negligence that give rise to wrongful death cases,
include:

 * Motor vehicle accidents
 * Dangerous premises
 * Defective products
 * Hazardous working conditions

For instance, many wrongful death claims arise from car accidents and other
motor vehicle accidents due to negligence, which can involve drivers failing to
follow road rules such as running stop signs, hitting cyclists or driving under
the influence.

While not as common as deaths caused by car accidents, medical malpractice is
another significant cause of wrongful deaths.


INTENTIONAL ACTS

Wrongful death claims can also stem from intentional acts like murder, assault,
or battery that result in death. Individuals responsible for deliberate actions
resulting in death, such as murder or manslaughter, may be subjected to civil
lawsuits in the form of a wrongful death action , in addition to any criminal
prosecution.


MALPRACTICE

Medical malpractice is another common type of wrongful death. Such lawsuits
require proof that the healthcare provider’s actions deviated from the accepted
standard of care, resulting in the patient’s death. To succeed in a medical
malpractice wrongful death lawsuit, plaintiffs must demonstrate that the
healthcare professional’s actions were a significant departure from accepted
medical practices, and that the malpractice caused the patient’s demise.


WHO CAN FILE A WRONGFUL DEATH SUIT?



Identifying who has the right to file a wrongful death suit is as important as
understanding the different types of wrongful death claims. Generally, the
parties eligible to file a wrongful death claim include immediate family
members, including spouses, children and parents of the deceased person. The
siblings and grandparents of the deceased may also be eligible to claim damages.

The scope of who can file a wrongful death claim is broad and inclusive,
covering various relationships with the deceased. In Ontario the Family Law Act,
establishes who may bring a wrongful death claim.


IMMEDIATE FAMILY MEMBERS

Immediate family members, such as the spouse and children of the victim, have
the legal right to seek compensation in wrongful death cases. This compensation
includes damages for the pain and suffering the surviving family has endured due
to the death, and the loss of financial support they would have received in the
future. For example, the widower or widow typically receives about 60 to 70% of
the deceased’s potential future income stream. This financial assistance can
help support them during a difficult time and into the future.


FINANCIAL DEPENDENTS AND LIFE PARTNERS

When faced with the tragedy of wrongful death, life partners, including those in
common-law unions, are empowered to file a claim for monetary compensation. This
legal right is a vital support mechanism during such devastating times.
Additionally, adult children and adults with disabilities who were financially
reliant on the deceased may also be eligible to assert a wrongful death claim.
To uphold such a claim, these dependents must demonstrate their economic
reliance on the deceased and the financial detriment suffered due to the
untimely passing.


PROVING WRONGFUL DEATH: KEY ELEMENTS AND EVIDENCE



A key step in filing a wrongful death claim is proving the wrongful death
itself. This involves:

 1. Establishing a duty of care
 2. Showing a breach of that duty
 3. Proving causation
 4. Demonstrating damages

Each of these elements plays a critical role in the successful resolution of a
wrongful death claim.


DUTY OF CARE

The duty of care is a legal obligation requiring individuals to act towards
others with watchfulness, attention, caution, and prudence that a reasonable
person under the circumstances would. This duty of care varies depending on the
nature of the relationship between the defendant and the deceased, such as
doctor-patient or driver-pedestrian relationships.

To prove the duty of care in court, the plaintiff must show that the defendant
had a responsibility to not cause harm or should have acted with a certain level
of caution to avoid causing harm and, that this responsibility was not met
according to reasonable person standards.


BREACH OF DUTY

Proving a breach of duty is crucial to establish a wrongful death. This involves
demonstrating that the defendant had a duty of care towards the deceased and
that they failed to fulfill this duty, leading to the harmful incident.

Determining if the duty was breached is often straightforward. For example, if a
person runs a red light and kills a person, it would be easy to prove that they
owed a duty of care to the deceased and that they breached it. In some cases of
wrongful death however, such as those caused by malpractice, it may be necessary
to rely upon expert evidence to specify what should have been done to prevent
the death. This is where the expertise of a wrongful death lawyer can be
invaluable, providing the necessary guidance to establish a breach of duty.


CAUSATION

Causation is another key element in wrongful death suits. It involves showing
that the defendant’s negligence was a direct or contributing factor to the
victim’s death. Causation is often proved through factual evidence about the
events that caused the death and in some cases, such as a defective product,
expert evidence may also be needed to prove the death was caused by the
negligent design or manufacture of the product.


DAMAGES

Wrongful death damages can consist of economic losses such as medical and
funeral expenses, lost earnings, and lost benefits. They also include damages
for non-economic losses, including loss of guidance, care and companionship, as
well as mental suffering.

Economic damages, include compensation for the loss of the deceased’s expected
lifetime earnings, loss of services and goods provided by the decedent, medical
expenses, funeral and burial expenses, and lost benefits like pension and
medical coverage.

Non-economic damages encompass mental anguish, emotional distress, grief, loss
of advice, care, support, loss of consortium, and pain and suffering, reflecting
the intangible emotional toll on survivors.

The amount of damages awarded for wrongful death varies widely, depending on the
decedent’s age, health, role in the family, income level, and the specific
circumstances of the wrongful death. In certain cases, punitive damages may be
applied to punish particularly egregious conduct.


THE PROCESS OF FILING A WRONGFUL DEATH CLAIM



Once you’ve understood the basics of wrongful death suits, the next step is to
understand the process of filing a wrongful death claim. This involves hiring a
lawyer, gathering evidence, and engaging in settlement negotiations. Each of
these steps is vital to the successful resolution of a wrongful death claim.


HIRING A LAWYER

Hiring a lawyer for a wrongful death lawsuit is critical as it is an emotionally
traumatic experience and the right legal representation can make a significant
difference. Experienced lawyers are essential in wrongful death cases to help
prove the case and ensure that the rights of the claimants are protected while
meeting legal requirements.

A wrongful death lawyer can bring peace of mind by handling the legal
complexities of the case, freeing family members to focus on healing and coping
with the emotional impact. Before filing a wrongful death claim, the most
important step is to find the right personal injury lawyers capable of guiding
families through the complexities of the legal system.


GATHERING EVIDENCE

Acquiring a death certificate is a fundamental step in gathering evidence for a
wrongful death claim as it validates the cause of death linked to the incident.
Securing qualified legal representation ensures that evidence is thoroughly
collected and critical legal procedures are followed in the wrongful death
claim.

Eyewitness accounts are crucial for painting an accurate picture of the events
leading to wrongful death and can greatly support the case. Expert witnesses,
such as medical professionals or toxicologists, can clarify intricate details
that are beyond common knowledge, thereby substantiating the wrongful death
claim.


FILING A WRONGFUL DEATH LAWSUIT

Once your lawyer has gathered evidence and assessed your case, they will issue a
Statement of Claim. This document will list all plaintiffs involved in the claim
and detail the damages sought, along with accusations of negligence directed
towards the responsible party or parties, known as the defendant.

Upon delivery of the Statement of Claim to the defendants, they are expected to
respond with a Statement of Defense, outlining their rebuttal to the allegations
levied against them.

Subsequently, both sides will share documents and evidence summaries to bolster
their positions. Each will have the chance to interrogate the other through a
discovery process, where they respond to the opposing lawyer’s questions in the
presence of a court reporter, aided by their own lawyer.

Wrongful death claims often reach settlement after the exchange of evidence and
completion of discoveries. Should a settlement not be reached, proceeding to
trial may be necessary to resolve the claim.


SETTLEMENT NEGOTIATIONS

Settlement negotiations in wrongful death claims will seek to address economic
damages like medical expenses and lost wages, as well as non-economic damages
such as pain and suffering of surviving family members. These negotiations aim
to reach a fair compensation agreement, providing both financial and emotional
relief to the grieving family.

Having a skilled and experienced wrongful death lawyer will significantly
improve the likelihood of achieving a successful settlement.


AVOIDING COMMON MISTAKES IN WRONGFUL DEATH LAWSUITS



Like any legal process, there are common pitfalls that one should avoid when
considering whether to file a wrongful death lawsuit or a personal injury claim.

One common pitfall is failing to consult with a qualified lawyer soon after the
fatality. Early representation is crucial to help you identify if you have a
claim. An experienced lawyer will gather the necessary evidence to support the
claim, they will ensure that proper notices are given of the claim and ensure
that any potential limitation periods are not missed. They will also ensure you
do not accept an unreasonably low settlement offer.

Once you hire a lawyer, you no longer have to deal with the insurance company or
their adjusters. Insurance adjusters often seek to delay claims, make low
settlement offers, and may use a claimant’s financial hardship to their
advantage in negotiations, which highlights the need for caution when dealing
with insurance companies.

Hiring a wrongful death lawyer can provide significant benefits, including:

 * Managing deadlines and aspects of the case that are labour-intensive
 * Offering protection from making critical errors in direct communications with
   insurance companies
 * Providing guidance on what to say and what not to say to the media, to avoid
   negatively affecting a lawsuit


STATUTE OF LIMITATIONS FOR WRONGFUL DEATH CLAIMS

Beyond avoiding common mistakes, understanding the legal time limit for filing a
wrongful death claim, known as the statute of limitations, is also crucial.

The general limitation period to file a wrongful death lawsuit varies by
jurisdiction, but is typically two years from the date of death.

If a wrongful death lawsuit is filed outside of the limitation period, the court
will normally dismiss it, regardless of the merits of the underlying claim.
There are some exceptions, and even if you have missed the limitation period,
you should still consult a qualified lawyer as the limitation may be extended.


THE ROLE OF INSURANCE IN WRONGFUL DEATH CASES

Lastly, insurance has a significant role in wrongful death cases. Insurance
companies are the primary entities that pay in most wrongful death suits, up to
the policy limits. If a wrongful death is caused by an insured driver, their
insurance company will pay the claim. If a doctor’s malpractice caused a death,
their insurer will pay.

When an insurance company is advised that their insured has caused a wrongful
death, they will immediately appoint an adjuster to handle the claim. The
adjuster will start an investigation to determine if their insured is liable for
the death. This may include visiting the accident scene, locating witnesses,
contacting family members of the deceased to get statements and, tracking social
media and news posts about the death.

The insurance adjusters job is to evaluate and limit the potential value of
claims the insurance company they work for may face because of their insured’s
actions. Adjusters evaluate claims by gathering evidence to challenge the
potential liability of their insured and to assess the value of the damages of
potential claimants. They will often seek to resolve claims early on before
claimants have hired a lawyer.

If a loved one has suffered a wrongful death, it is a good idea to contact an
experienced wrongful death lawyer as soon as possible, as you can be certain
that the Insurance company that insured the person or company that caused the
death has started to adjust your claim.


SUMMARY

It’s clear that wrongful death suits are complex and emotionally charged. They
require a thorough understanding of various aspects, such as the types of
wrongful death claims, who can file a claim, key elements needed to prove a
claim, and the process of filing a claim. It’s also important to avoid common
mistakes, understand the statute of limitations, and recognize the role of
insurance in these cases.

While this blog post provides a comprehensive guide, it’s crucial to remember
that each wrongful death case is unique, requiring personalized legal advice.
Consulting with an experienced wrongful death lawyer can provide the necessary
guidance, support, and assurance to successfully navigate the complexities of a
wrongful death lawsuit and seek justice for your loved one.


FREQUENTLY ASKED QUESTIONS


WHAT IS THE WRONGFUL DEATH LAWSUIT IN CANADA?

In Canada, a wrongful death lawsuit is a civil action that allows family members
to sue for economic and non-economic losses resulting from the death of a loved
one. It may include compensation for financial loss and pain and suffering.


WHAT IS THE MEANING OF UNLAWFUL DEATH?

Unlawful death refers to a death caused by the negligent, willful, or wrongful
act, neglect, omission, or default of another party.


WHAT IS THE STATUTE OF LIMITATIONS FOR A WRONGFUL DEATH CLAIM?

In most jurisdictions, the statute of limitations for a wrongful death claim is
typically two years from the date of death.


WHAT ROLE DO INSURANCE COMPANIES PLAY IN WRONGFUL DEATH CASES?

Insurance companies generally play a primary role in paying out settlements in
wrongful death cases, typically up to the policy limits. They are the main
source of financial compensation for the affected parties.


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