When a family member has been fatally injured because of another person or entity’s negligence, the deceased person has the lawful right to make a claim through his or her own estate that will ultimately compensate certain remaining family members for their loss. Contingent upon the circumstances, those who may recover under the deceased’s claim include parents, spouses, children and/or other dependents. Contact a Fort Collins wrongful death attorney to find out if the state in which the claim is brought recognizes common-law marriages.
The six steps listed below provide a general outline through the step-by-step progression of a wrongful death claim. Attorneys in most states will follow this procedural path but keep in mind that there are a number of other procedures, requests, discussions, and demands that lawfully occur during the stages listed below. Every case is different as are the players involved.
Opening an Estate
After a lawyer conducts an investigation of the facts surrounding the claim, an estate will be opened for the decedent. If the decedent had a valid will, his or her appointed personal representative will represent and be the spokesperson for the decedent’s interests in the imminent wrongful death action. If the decedent died without a valid will, the court will appoint a representative to act on his or her behalf.
Filing the Wrongful Death Claim With the Court
After an estate has been opened, a wrongful death claim may be filed with the court. There are any number of circumstances that can cause the negligent death of another person. If you know of circumstances that do not fit into any of the categories listed below, contact a Fort Collins injury attorney for an evaluation of your claim. The following is a partial list of accidents that may result in a valid wrongful death claim:
- Automobile accident
- Motorcycle accident
- Bicycle accident
- Pedestrian accident
- Work-related accident
- Construction accident
- Railroad or Aviation accident
- Animal bite
- Defective and dangerous product
- Nursing home neglect or abuse
- Medical malpractice
Demand Letter – Spoliation of Evidence
If there is evidence critical to the decedent’s claim, your attorney will immediately send a demand requesting the custodian refrain from altering or destroying any evidence that may support the plaintiff’s claim. If a question of fact or liability exists, your attorney will hire experts to analyze and validate the evidence.
Wrongful death claims generally require plaintiff and defense attorneys to dig deep into the discovery process before any preliminary first offer of settlement can be made. During discovery, both sides share information, documentation, and hard evidence that provides insight to the parties and the facts surrounding the claim. Discovery is an ongoing process and it takes time to acquire the necessary reports, photographs, letters, bills, documentation and hard evidence that must be shared with the other side.
While keeping in mind that legal procedures may differ from state to state, if a settlement has not been agreed upon once all the required documentation has been shared, the claim will be set for a mediation hearing before the trial date, i.e., a discussion between the parties in the hopes that a successful offer of settlement will be made and accepted, thereby avoiding a trial.
Finally, if settlement negotiations have failed and the parties wish to continue with the claim, a trial before a judge or jury will ensue and the plaintiff may or may not receive an award from the court. If either party feels an injustice occurred during trial, the case may go to the Court of Appeals for an opinion on the lower court’s decision.