Dealing with the Loss of a Loved One is Never Easy.
Sadly, the death of a loved one is a life-changing and devastating moment for surviving family members, especially when it is due to someone’s negligence or carelessness. The grieving process is always difficult for everyone involved, with many complicated and intense emotions surfacing.
Challenges in all our daily lives are fast-growing and becoming more intense as time goes by. Having to deal with any kind of unexpected loss, particularly that of a loved one, is one of the most emotionally stressful situations any of us may be called to face. The death of a person close to us, irrespective of the circumstances under which it occurs, is always a life-changing and often devastating moment for surviving family members. When the event of that person’s demise is the result of someone else’s negligence or carelessness, things certainly become harder—both emotionally and practically.
At the same time, one cannot overlook the practical impact that an unexpected death also has on the surviving family of the deceased, especially in situations where its members find that they no longer have a primary earner. Having to deal with an unexpected financial burden on top of the existing emotional distress is a very difficult position to find yourself in. It is imperative that you address it in the most effective and expeditious way possible.
By filing a wrongful death claim and holding responsible those accountable for the demise of your loved one, you may be able to recover compensation that will offer you valuable financial assistance toward expenses arising from those events. Even though no kind of legal action can ever reverse tragic events, the law can provide some (often considerable) relief toward the financial loss that may be “measured” and attributed to the party (or parties) responsible.
- Auto collisions.
- Truck & Motorcycle accidents.
- Bicycle collisions.
- Medical malpractice.
- Defective products.
- Work-related and construction accidents.
This type of assistance can prove to be pivotal in alleviating some of the financial burdens you may be called to deal with. If you find yourself in such a position and are considering taking legal action, an experienced and understanding personal injury lawyer, who will have your best interests at heart is exactly the kind of advisor and ally you should be looking out for to guide you through this demanding process.
What Is a Wrongful Death Claim?
A wrongful death lawsuit is a special type of civil legal action that the surviving family may be entitled to take in order to have those who caused or contributed to the wrongful death of a loved one be held accountable. Each State, including Colorado, has its own statutes in place that set out who is allowed to file a lawsuit for wrongful death, the applicable time limitations for doing so, as well as limits on the amount that can be awarded in damages. In our state, the main legal framework is provided by the Colorado Revised Statutes §§ 13-21-201 through 13-21-204, also commonly referred to as the Colorado Wrongful Death Act.
Wrongful death actions may be filed in situations when the demise of a person is caused due to the legal fault of another. As a wrongful death lawsuit in Colorado may be brought for the death of any “person,” Colorado courts have held that a child who is born alive but who dies after birth is to be considered a “person” within the meaning of the term under the Wrongful Death Act. Hence, in cases where a child suffers prenatal injuries, is born prematurely due to this fact, and subsequently dies as a result, the parents may be entitled to commence a wrongful death action against the person or entity who caused the injuries that caused their child’s demise. Similarly, a wrongful death case may also be maintained for the death of a fetus if it can be proved on the basis of evidence that the fetus was viable at the time of injury.
It must be highlighted that wrongful death lawsuits are independent of, and often additional to criminal charges that may have also been brought in respect of the death in question, depending on the particular circumstances of each case.
To succeed in a wrongful death action, it is necessary to establish neglect/negligence or intent to cause the deceased individual harm, causation, as well as that you have suffered related damage as a result of those events. In other words, you will have to show that the defendant(s) in the action owed a duty of care to your loved one, which they breached. It must also be proved that it was this breach that caused the death of your loved one and that, because of this, you have suffered a corresponding loss.
The main purpose of this type of lawsuit is to provide financial support for orphans and widows by way of economic and sometimes also non-economic damages. Some of the key types of losses that may be recovered through damages relate to medical and funeral expenses, lost wages, damages for pain and suffering, and lost companionship.
It must also be stressed that, in accordance with Colorado legislation, a wrongful death action may be successfully maintained only in cases where the deceased person, had they survived, would have been legally entitled to recover damages against the person(s) who caused the injury or condition resulting in death. Consequently, any defenses, such as comparative negligence or assumption of risk, that may have applied to the decedent’s bodily injury claim, if he or she had survived, will also apply to any wrongful death claim brought by persons with standing to do so.
Bearing in mind the above, it is vital to understand that not everyone can file a wrongful death lawsuit, nor is it available in every situation where sudden death has occurred, while the applicable statute of limitations must also be carefully adhered to. As this is a rather complicated area of law, with various conditions, requirements, and limitations in place, with each case posing unique challenges, seeking professional advice before deciding which option may be more suitable in your situation is highly recommended.
Is a Wrongful Death Claim the Same as a Survival Action?
Wrongful death actions should not be confused with survival actions, which are similar yet not the same as a wrongful death claim. Practically speaking, an action under the Colorado Survival Statute (Colorado Revised Statutes Title) may take place alongside an action under the Colorado Wrongful Death Act, therefore the two are not mutually exclusive.
A survival action usually takes place in circumstances when the deceased person has no surviving family members and a representative of their estate (typically the executor) files a claim to recover the damages for the losses to the estate. If successful, a survival action will lead to the granting of compensation for various expenses associated with the injuries sustained by the deceased up until the time of their death, such as pre-death medical expenses, lost wages that occurred during the period between the infliction of the injuries and the person’s death, etc.
Whereas a wrongful death action has as its main aim to repay the beneficiaries of the deceased directly for the losses that they have suffered, the damages ordered in a survival action correspond to those that the deceased would have recovered if they had survived and had been able to file a personal injury lawsuit themselves. Thus, while wrongful death actions are brought for the benefit of a person’s beneficiaries, survival actions are brought on behalf of the deceased person’s estate to compensate the person who died.
Who Is Entitled to File a Wrongful Death Claim and When?
In situations where a wrongful death has arisen, one or more of the surviving family members of the person who died can bring a wrongful death action to court. The reason why wrongful death laws, including those applicable in Colorado, establish priorities with regard to who may file an action goes back to the fundamental premises of such actions, which is to provide monetary compensation to those family members who depended financially on the deceased.
More specifically, the Colorado Wrongful Death Act primarily allows the surviving spouse and the children of the deceased person to file a claim. In cases where there are no surviving heirs in the immediate family, with the term “heirs” having been narrowly construed by the courts, the deceased person’s parents may be able to commence an action, even though it must be underlined that they do not have a general right to do so and may only bring an action for the wrongful death of a child when said child is not survived by a spouse or heirs. Furthermore, as under the wrongful death laws of Colorado recovery is basically limited to lineal descendants, family members such as siblings, uncles, and aunts are typically precluded from bringing a wrongful death lawsuit, even when no action has been brought by other entitled parties or when such persons are the decedent’s only surviving relatives
Although the question of who has standing to bring a wrongful action claim is normally fairly straightforward to ascertain, this is not necessarily always the case: there are difficult cases where there may be parties with conflicting claims, resulting in considerable conflicts of interest between them and their respective competing claims. Such examples may include, but are not limited to, situations where a person claims to have been in a common-law marriage with the deceased, or where the paternity or maternity of a child filing a wrongful death action has not yet been established.
As a general rule, the Colorado wrongful death statute of limitations provides for two years in which family members can bring a claim, commencing from the date of death. During the first year, only the surviving spouse may file a wrongful death action, whereas, in the second year, both the spouse as well as any surviving children are permitted to file a claim or, in the case of children, join an action brought by the surviving spouse.
Notwithstanding this general two-year rule, there are certain situations when this deadline may be altered, meaning that it is possible that one may have a longer or shorter time within which to file a claim. For example, the statute of limitations for wrongful death actions under Colorado’s Dram Shop Act is one year. If, however, the deceased died as a result of a car collision, the family has three years from the date of death to file a claim. Moreover, the statute of limitations may also be extended in other cases, such as when a defendant tries to hide facts in order to obstruct the process of retrieval or evidence, or engages in fraud.
The crucial thing to always remember is that irrespective of the applicable statute of limitations, you should always try to set up your case as early as possible and receive solid advice that will enable you to support it effectively.
Events Giving Rise to Wrongful Death Actions and Related Challenges
As mentioned earlier, wrongful death claims may arise from a great number of events, such as accidents involving cars and other motor vehicles, aviation and boating accidents, sports accidents, construction accidents and other accidents occurring in the workplace, accidents resulting from defective conditions of premises (premises liability), fires and explosions, pedestrian accidents, swimming pool accidents, construction accidents, substandard medical, surgical, hospital or nursing home care (medical malpractice), injuries caused by defective products, slip-and-falls, and many others. Wrongful death lawsuits may also be brought in the context of homicide cases, including cases of murder-suicide.
All wrongful death lawsuits, whether they concern harm caused that was not purposeful or where intent to harm was present, call for elaborate actual examination and the retrieval of appropriate evidence. In almost all cases, a number of different witnesses will have to be interviewed and, more often than not, the assistance of experts in the related field will also be required in order to build a successful case. You will need to make sure not only that the tragic event that led to the death of your loved one gives rise to a wrongful death claim, but also that you have all necessary evidence in place to prove that the duty of care that was owed to the deceased was breached, and it was this that subsequently caused their death.
In our extensive and long-standing experience, there is no such thing as an “easy” wrongful death case, as each one entails individual difficulties and complications, while having to fulfill the complex requirements set for establishing both liability and causation.
Types and Amount of Damages that May Be Recovered
Pecuniary damages, meaning the type of damages that can be calculated in financial terms, typically represent the main measure of damages for wrongful death actions. Therefore, broadly speaking, claimants in such actions can normally be compensated for:
- Lost income, especially if the deceased was the primary earner who used to support family members financially. This may include streams of actual income lost but also future expected income, as well as potential loss of benefits, such as the deceased’s insurance.
- Medical bills that arose because of the injury that led to the death of your loved one, prior to their passing.
- Funeral costs that must be covered and other related expenses.
- Costs arising from loss of care, maintenance, and general support caused by the person’s demise. The law recognizes that, even if the deceased was not the primary earner, they may well have made a significant contribution to the family in other ways that will now give rise to additional expenses (for example childcare, household maintenance and management, and so on).
The calculation of some economic benefits can be far from straightforward, as not all quantifiable losses can be easily and clearly assessable. Unlike medical expenses or funeral bills, which may be quite specific, determining loss of future expected income or the cost arising from loss of care, maintenance, and general support is more challenging. For such expenses, the assistance of an expert, such as an economist, may be required, so working with a personal injury attorney who will have a trusted network of professionals that can help and guide you along the way, may prove to be invaluable.
In a similar vein, non-economic damages that may be recoverable usually relate to:
- Pain and suffering you experience due to the death of your loved one, and possibly also compensation for the pain and suffering endured by the deceased person before their death.
- Loss of companionship, or “loss of consortium”, as is the legal term for describing the effect that a loved one’s demise has on relationships, companionship, and support lost due to this tragic event.
The determination of the above is clearly quite a subjective exercise, and the amount of damages recoverable will depend upon proof of the closeness and duration of the relationship between the decedent and the surviving parties. Unsurprisingly, the rules governing such types of non-economic damages in Colorado are very complicated, rendering the process of determining the amount one should claim a rather intricate and difficult one.
Lastly, under the legislative amendments to the Wrongful Death Act 2000, it may be possible to seek exemplary (punitive) damages in wrongful death cases. Having said that, this cannot be included in your original claim for relief for wrongful death, and may only be entered sixty days after the exchange of disclosures, provided you are allowed to amend your complaint to add an exemplary damages claim.
When it comes to the actual amounts you may be able to recover following a wrongful death action, things become even more complicated. As each case is different, and only a broad indication can be offered in good conscience, it may be helpful to keep in mind the following:
- There is generally no limit to the amount of economic damages that can be recovered in a wrongful death action, as they are not subject to a statutory cap. Nevertheless, the amount of recoverable damages will still be calculated based on the net pecuniary loss sustained by the plaintiff.
- Recoverable non-economic damages for grief, sorrow, and loss of companionship are limited by statute to the amount of $436,070 (as of March 2022).
- The total amount of all damages recoverable, meaning both economic and non-economic, for the death of a decedent who is not survived by a spouse, minor children or dependent parents, is currently also capped at $436,070.
- The above statutory caps can be lifted if the plaintiff can prove that the decedent’s death resulted from a “felonious killing”, which includes first-degree murder, second-degree murder, or manslaughter.
Lastly, some may not wish to testify in court and present proof as to their assessment of non-economic damage, for many obvious sensitive reasons. That is why the Colorado Wrongful Death Act provides the option of electing to recover the “solatium amount” instead of presenting proof of actual non-economic damages, which is currently set at $87,210 (March 2022). Since the recovery of this solatium amount requires no proof of any actual damages, it essentially represents the “floor value” of any wrongful death claim under Colorado law.
Contact Legal Help in Colorado
We are committed to offering professional advice in all matters leading to wrongful death, with a genuine and compassionate approach. Our experienced legal team is here to assist you and your family in this stressful and challenging time. Ross Ziev, along with our entire legal team at Legal Help in Colorado, is committed to getting justice for victims of negligence.
Reach out to us today to schedule an appointment. Initial consultations are free and conducted with absolute confidence. If we take on your case, you can rest assured that our contingency payment policy means that you will not have to worry about being able to afford a skilled lawyer, on top of all other pressing considerations, as we only get paid when we win your case. Contact Legal Help in Colorado online, call us at (720) 743-3682, or visit our offices at 8480 E Orchard Road, STE #2400, Greenwood Village CO 80111 to discuss your case!