What Are The Top Misconceptions About Wrongful Death Suits?
There are a couple of misconceptions when it comes to wrongful death suits. In New York, the cause of action, or the lawsuit for wrongful death has to be brought by the estate. Many inexperienced attorneys will try bringing the lawsuit for the wrongful death of a person with simply the child, or wife as the only plaintiff, and those cases usually are dismissed. It is really important to do this procedure properly, and go to Surrogate court. Another big misconception is the amount of damages that can be recovered in a wrongful death suit. Unfortunately, in New York, the damages are very limited, as they are under federal law. For example, the death in the high seas act we talked about previously.
You can actually receive a settlement from the person who died, either with pre-death pain, and suffering, or obviously burial and funeral expenses, and any car accident case that typically is paid by the no fault carrier, the insurance carrier. In addition to that, you can also receive an award for the financial value that the decedent, the wife, or the child lost. A child or a wife of someone who has died can recover the value of the support that the decedent or the person who died would have provided throughout the course of their lives.
In the case of a child, or spouse, it could be financial, but it can be the value, for services provided. For example, mentoring, coaching, education, guidance, that sort of thing, all that has a value. Typically, in these kinds of cases, we will retain an economist to place a value on the cost of education, or what a coach would charge for a similar service. Those are just ways to place a value on the types of services that the person who passed away would have provided. Certainly, in egregious, reckless, or intentional types of cases, you can also receive punitive damages.
For example, if there is a police shooting case, which would fall under the section 19A (III), Civil Rights laws, you can you receive punitive damages in any type of wrongful conduct. We see punitive damages in cases with truck accidents, or DWI cases. Some of the courts are starting to allow them. You can obtain those general damages in a wrongful death case.
How Are Damages Generally Divided Amongst Multiple Heirs?Typically, the estate will be entitled to an award, thus all the money has to go into the estate as in the Surrogate courts. Generally, that determines, or approves of the distribution, but it goes by class. Many of the distributions that an estate recovers will follow a person’s will. Therefore, it will be distributed as an asset of the estate, and it depends on what the person’s will stipulates. Now, financial dependents will be able to receive an award that is brought on their behalf specifically, except an award for an infant, which is anyone under the age of eighteen.
Any child’s award will have to go into some sort of a structured settlement for them or a bank account until they turn eighteen. However, if there is no will, then the money will be allocated by the Surrogate courts under New York’s intestate laws. This means the spouse gets a certain percentage, and then it goes to the children, and if there are no children available, it goes to the parents, and so forth.
Who Is Entitled To The Damages In The Wrongful Death Of A Child With Divorced Parents?The general rule under New York law is the each parent will be entitled to fifty percent if the couple is divorced in a wrongful death suit. However, in cases where one parent can prove abandonment, and our New York wrongful death lawyers have actually gone through a lengthy trial with this issue, which we won, if you can show that one parent abandoned the child before the person died, and did not recommence contact, they can be excluded from any of the settlement. It is an application that has to be brought in the Surrogate courts and our New York wrongful death attorneys have fought this fight before. Our wrongful death lawyers have litigated this kind of a case before, it is rarely an option, but we have done this successfully. Typically, we would show proof from the spouse who was involved, or parent who was involved in that child’s life, and the other wasn’t.
In the case our wrongful death attorneys successfully tried, the decedent’s friends all testified in favor of our client and proved that the dead beat dad abandoned the child and had no interest in her life, but came back into the picture to try and get money when she died. On one of our cases, where a young girl passed away, we called her boyfriend, and other friends. They all talked about the girl, and claimed she really did not know her father, never ever met him. They were successful in establishing that her father had abandoned the daughter. This is not unusual that a parent is not involved in the child’s life. Nevertheless, then all of a sudden when the child dies, and there is money to be had, that he suddenly shows up for the money even though there were not there throughout the course of the child’s life. In those kinds of cases, our wrongful death lawyers are aggressive when we pursue these remedies to make sure that the parent who actually was involved in the child’s life, and supported the child, and suffered the loss, receives the award.
Information on Misconceptions About New York Wrongful Death Claims or call the New York Law Offices of Michael H. Joseph, PLLC for a FREE Initial Consultation at (212) 858-0503 and get the legal answers you are seeking. We have offices in midtown. Manhattan and New York.