Wrongful Death Lawsuits

By William Bill Hurst

If you’ve lost a loved one in a wrongful death accident , you probably wish to see the responsible party held accountable.  While a criminal action may be involved, you’ll have little or no control over the proceeding.  Another avenue for seeking accountability is a civil wrongful death lawsuit which you can file and participate in fully!  The primary purpose of a wrongful death lawsuit is to compensate the families of victims for their economic and emotional losses associated with the death of a loved one; in addition these lawsuits are helpful in relieving “anger” the survivors often feel.

 

Emotionally recovering from the loss of a family member is one of life’s most difficult challenges.  Following the unexpected accidental death of a family member, the responsibilities that are required of you to financially take care of the matters and emotionally care for others may be a difficult task!  When clients are recovering from grief it is helpful to obtain a knowledgeable wrongful death lawyer to relieve at least a part of this burden from your shoulders!

 

The survivors and heirs of a Wrongful Death Estate in most states bring the civil action.   Specifically what may be recovered by the Estate depends upon which State the victims brought action or where the accident occurred.  Most States have Wrongful Death Statutes (laws) which govern the elements of damages a judge or jury may consider in rendering an award for the death of a loved one.  In Indiana the recovery for the death appraisal is primarily in three areas of (IC 34-23-1-1) specified damages:

(1)     the loss of love, companionship and affection;

(2)     the value of household services of the decedent would have provided in the future; and

(3)     the value of the financial support which a claimant would have received from the decedent but for his or her death.

If the person killed in Indiana was “an adult with no spouse or dependent children” the claim is brought under the Adult Wrongful Death Act( IC 34-23-1-2) which provides the following damages:

  1. Hospital and funeral expenses; and
  2. Loss of the adult person’s love and affection.

These damages are unfortunately “capped” at the maximun sum of $300,000.

 

There were 32,885 deaths in 2010 and many were and are currently children. automobile accidents account for the majority of child deaths in the United States. For many years Indiana law did not call for the law of love and affection when a child was killed.  In addition, brought cases were often “settled” for little more than burial expenses.   Our Senior Partner, William W. Hurst, tried and won the first wrongful death case for the death of a child in Indiana which valued “love and affection of a child” as an element of damage in the Mayberry vs. Indiana Insurance Commissioner 467 NE id 1205 (1984).  Prior to Mayberry the loss of a child was simply valued as a “financial loss”.  Indiana, like many States, restricted the recovery for the death of a child to “earnings and services” the child provided to parents; and then required a reduction of his “cost of support and maintenance”.  This valuation was based on the archaic view that when a child is injured the family lost actual income.  Near the turn-of-the-century children were “farmed out” to work in factories and fields; and often were a primary source of income for the family.  Once the Child Labor Laws were enacted proof of loss of earnings did not exist and verdicts and settlements for a parent’s loss were insignificant, i.e. usually the burial expense.

Read More Here:

Miller v. Mayberry, 462 NE 2d 1316 – Ind: Court Of Appeals, 2nd District 1984.

Miller v. Mayberry, 506 NE 2d 7 – Ind: Supreme Court 1987

 

In 1984, William “Bill” Hurst   in Mayberry tried and won the 1st case; placing a value on a 3 year old child’s life at $500,000 the (“cap” maximum at that time under Indiana’s new Medical Malpractice Act – “Tort Reform”).  Unfortunately, the Supreme Court of the State of Indiana in September of 1984, (citing ancient legal precedents) reversed and for a second time sent the case back for retrial. Bill, once again tried this case;  for a second time, and he obtained a verdict for the Statutory Limits  ($500,000).  Again the case was appealed to the Indiana Supreme Court which again reversed; however, this time there were vigorous well-reasoned dissents (see Mayberry 546 NE Id 839 (1989).  The Mayberry decision brought to the public’s attention, the inadequate and unjust valuation the law placed on a parents’ loss of a child.

The opinion in Mayberry directed the Indiana Legislature to enact a law to provide for the wrongful death of children.  Ultimately the Legislature enacted what has “evolved” into the Indiana Child Death Act (IC 34-23-2-1).  Today in Indiana, because of Bill’s efforts, a parent or parents who lose a child due to the fault of another may recover damages which include the loss of love and affection of their child.

 

Upon resolution of a wrongful death claim, the heir of the Estate who receives the funds varies from State to State.  In Indiana if there is a widow or widower, after payment of the expenses, the rest of the money goes to the spouse and is shared with the dependent children, if any, or dependent next of kin.  It is shared in the same manner as personal property.  If the family member who was killed leaves no  widow/widower or dependent children, the damages then go to pay the hospital services and reasonable medical services, funeral and burial expenses, and the personal representative for reasonable costs of their services for administrating the estate.  What remains is divided by statute with a surviving parent, adult and children; each must prove a” genuine, substantial, ongoing relationship with the deceased (the cause of justify specifies the amount for each). The aggregate damage that may be recovered may not exceed $300,000.

In the case of a child’s death, the funds awarded go to the father and mother jointly if both have custody, the custodial parent with non- custodial to be awarded an amount apportioned by the Court, a custodial grandparent if the child is not survived by parents.

Please remember that every wrongful death claim is subject to a Statute of Limitations (IC 34-23-1-1).  Meeting with a knowledgeable  attorney as soon as you are emotionally able is imperative!  If someone’s negligent conduct caused your loved one’s untimely death you should contact  an Indiana Wrongful Death Lawyer.  Our lawyers can help you move forward with your life and we only get paid if we recover for you.  We would be happy to meet with you for a free consultation, or you can call us at 800-636-0808 or visit www.https://billhurst.com/m.

 

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