Massachusetts and New Hampshire Personal Injury Attorneys

24 hours / 7 days a week | English | Español

Toll Free: (855) 693-9084

Local: (978) 744-8000

Wrongful Death

Wrongful Death: Pedestrian Accidents

Pedestrian AccidentsPedestrians face a significant risk of being involved in a fatal accident when they walk, jog, or sit near roadways or parking lots. Tragically, every 88 minutes, a pedestrian dies in a traffic accident in the United States, which equates to approximately 6,000 people annually. In many cases, these accidents are not blameless and are caused by the negligence or deliberately reckless actions of a motorist.

If you have lost a loved one in a pedestrian fatality, you may be entitled to compensation if another party’s negligence or intent to harm caused the accident. Here’s what you need to know about wrongful death pedestrian accidents in Massachusetts and New Hampshire.

Negligence in Pedestrian Wrongful Deaths

To be considered responsible for a pedestrian’s death, the motorist must have acted negligently or with intent to harm. When they get behind the wheel of a vehicle, drivers have a duty of care to other motorists, bicyclists, and pedestrians on the road. When they breach this duty by speeding, running stop signs, failing to yield, driving recklessly, not paying attention, or driving under the influence, they are acting negligently. When you bring forward a wrongful death pedestrian accident lawsuit or insurance claim, establishing negligence is critical.

If the motorist is operating a work vehicle or is on the clock while driving their own vehicle, they may be personally negligent based on how they are driving. Their employer may also be guilty of negligence. Depending on the circumstances, the business may have been negligent by failing to check the driver’s credentials, not training the driver, failing to perform safety checks or maintenance on the vehicle, or not outfitting the vehicle with safety essentials.

Contributory Negligence

Both Massachusetts and New Hampshire allow contributory negligence defenses in wrongful death cases. If you bring one forward, be aware that the defense may try to argue that your loved one was partly or wholly at fault for the accident. For instance, if the victim was crossing the street outside of a crosswalk, the defense may try to argue that they caused or contributed to their own death.

If it’s determined that the victim contributed to the accident, the settlement may be reduced by the portion of blame assigned to the victim. For instance, if the victim is responsible for 30% of the accident, the compensation is reduced by 30%. Note that when victims are judged to be responsible for more than half of the accident, no settlement is awarded.

Hearing claims of contributory negligence can be difficult after you have lost a loved one, and having a settlement reduced due to these claims can be financially painful. To minimize the effects of contributory negligence defenses, you need an attorney with a successful track record of handling wrongful death pedestrian accident cases.

Wrongful Death Insurance Settlements

Often, attorneys first try to obtain a settlement from the driver’s insurance policy or the driver’s employer’s insurance policy, if applicable. If their liability coverage does is not adequate enough to cover the damages, a claim may be made on the victim’s underinsured motorist coverage, but this requires very strict adherence to procedural requirements.

In many cases, insurance adjusters tend to downplay damages to reduce settlements for their clients. To ensure that your case goes as smoothly as possible, you need to work with a pedestrian accident attorney who understands the nuances of pedestrian wrongful death cases and how to successfully establish maximum damages in these cases.

Damages

In wrongful death cases, damages typically include both economic and noneconomic damages suffered by the pedestrian, such as final medical expenses and pain and suffering. Additionally, damages may also include the monetary injuries experienced by survivors. This includes direct costs such as funeral and burial or cremation expenses, and the loss of financial support. It also includes indirect costs such as loss of consortium or companionship, pain and suffering experienced by the survivors, and mental anguish.

Contact the Pedestrian Wrongful Death Attorneys at Mazow | McCullough, PC

If you have lost a loved one in a pedestrian accident, we extend our deepest sympathies to you. We know that the loss of a loved one, especially in a tragic accident, can feel unbearable. Although we cannot bring your loved one back, we can use our experience as pedestrian accident lawyers to fight to help you find justice for the damages and economic losses suffered as a result of this tragic accident.

At Mazow | McCullough, PC, we give our clients personalized attention throughout their cases, and we work hard to treat our clients like we would want our own families to be treated. If you have lost a loved one in a fatal pedestrian accident, contact us today to set up a no-cost case evaluation.

What to Expect in a Wrongful Death Investigation

Wrongful Death InvestigationTo win a settlement in a wrongful death insurance claim or lawsuit, your attorney must establish that someone’s negligence caused your loved one’s death and that you suffered damages as a result of the death. A wrongful death investigation helps to prove these facts. Here’s a look at the different components of wrongful death investigations.

Criminal Investigation

Often, there may be a criminal investigation of the incident. Via a crime scene investigation, the investigator searches for evidence that a crime occurred. In some cases, they may say the evidence points to a wrongful death rather than a crime. Keep in mind that criminal and civil charges are different, and defendants can be tried in both types of cases. Even if someone is determined to be innocent of a crime, they may still be held liable in a wrongful death case.

Preliminary Investigation

Before taking on your case, wrongful death attorneys may perform a brief preliminary investigation to establish the validity of the case and identify the negligent party. During this process, they take a more in-depth look into what happened, and they attempt to determine if you have a viable wrongful death case. Depending on the circumstances, the investigation may involve talking to witnesses, reviewing medical records and surveillance videos, reconstructing accidents, analyzing crime scene forensics, and evaluating other evidence related to the death.

The exact process varies based on the type of case. For instance, if the victim died due to a malfunctioning product, the investigation may focus on the product’s marketing, safety labels, and other elements related to product liability cases. In contrast, if the wrongful death happened at work, the investigation may look for company negligence or mismanagement.

Discovery

Once the lawsuit or insurance claim is filed, both sides engage in a discovery period. Often, discovery is the longest part of a wrongful death case. During this part of the process, both sides attempt to find as many details as they can about the accident.

During discovery, wrongful death attorneys make requests for production, meaning they ask for documents from the insurance company, defense attorneys, and other entities as needed. They may request copies of insurance policies, police reports, medical reports, coroner’s reports, accident reports, and any other documents that can shed light on what happened and who may have been responsible.

The attorneys on both sides may also use interrogatories, or written questions that must be answered by the recipient. To gather more details, they may also request dispositions, which are recorded question and answer periods.

Additional Elements of Wrongful Death Investigations

During a wrongful death case, your attorney must establish that the other party directly caused your loved one’s fatal accident. At the same time, the other side may claim that your loved one contributed to the accident and may conduct their own investigation to establish evidence to support their claim. To ensure you have the best outcome possible for your case, work with a wrongful death lawyer who understands the importance of thorough investigation and can help protect your case against contributory negligence defenses.

Wrongful death attorneys must also establish damages that occurred as a result of the death. Many damages are easy to assess because they are tied to direct economic costs, such as the victim’s final medical bills or funeral expenses, but assigning a value to indirect or noneconomic damages can be more difficult.

For example, in a wrongful death case, your attorney may argue that you deserve compensation for pain and suffering endured by the victim as they died. They may also try to obtain compensation for loss of financial support provided by the victim, and for loss of companionship, consortium, and guidance. Putting a dollar value on these intangible losses can be challenging, and to ensure you receive the fairest settlement possible for your situation, it’s important to work with an experienced lawyer. Ideally, attorney should also have extensive connections with expert witnesses who can testify about complex medical conditions, how an accident occurred, product defects, and other causes of wrongful death.

Wrongful Death Attorneys Who Can Help You

At Mazow | McCullough, PC, we strive to treat our clients like family, and we diligently investigate every case to position it for success. If you have lost a loved one due to wrongful death, we offer you our deepest sympathies, and we urge you to contact us to set up a no-cost case evaluation.

How to Calculate Funeral Expenses After a Wrongful Death

Wrongful DeathIf you have lost a loved one due to wrongful death, you may be eligible for a settlement. Compensation may include expenses for your loved one’s final medical bills, pain and suffering, and funeral costs. You may also be eligible for compensation due to loss of companionship, lost wages, and other direct and indirect expenses you have suffered due to your loved one’s death.

To help you understand more about the settlement process in a wrongful death lawsuit, look at the following breakdown of what to expect in relation to funeral expenses after a wrongful death.

The Cost of a Funeral

According to the National Funeral Directors Association (NFDA), the average cost of a funeral in 2017 was almost $9,000. That number represents about a $250 increase over costs three years earlier, and every year, these numbers continue to climb. These costs include a ceremony, a viewing, and the burial, but depending on what you decide to do for the funeral, the costs can vary greatly.

For instance, direct cremation can cost $2000 or less, but this option doesn’t involve a ceremony or a viewing which many people find essential for their grieving process. You can also spend more than $9,000 if you choose an ornate casket, hold a large reception, or opt for other additional ways to memorialize your loved one.

Funeral Expenses Covered in Wrongful Death Suits

As indicated above, you can claim funeral expenses when you bring forward a wrongful death lawsuit. Most states stipulate, however, that you can only sue for reasonable expenses, and some states even list the covered expenses in their statutes. Although the rules vary, the following costs usually are considered reasonable:

  • Preparing the body (embalming, washing, dressing, etc.)
  • Costs related to viewing the body
  • Funeral ceremony
  • Hearse or other transportation costs
  • Casket or alternative container
  • Burial or cremation
  • Urn
  • Tombstone
  • Burial plot or space in mausoleum or columbarium

However, funerals often include many more expenses than those detailed above. When calculating the cost of a funeral after a wrongful death, you may want to include costs related to a funeral reception or airline tickets if your family lives far away.

Because “reasonable expenses” is a subjective concept, it’s important to work with an experienced wrongful death attorney. They can contend that you should be compensated for all costs associated with your loved one’s funeral. You may be limited, in some cases, to receiving the state median funeral cost in compensation. Talk with your attorney so that you know what to expect.

Paying for a Funeral After a Wrongful Death

Although funeral costs are generally included in wrongful death settlements, in most cases, you won’t receive the settlement for a while after the death. The timeline can vary dramatically depending on when the wrongful death suit is brought forward, the elements of your case, whether you and the defendant agree to a settlement, and other factors. Unfortunately, it’s not uncommon for survivors to receive the compensation a year or more after the death.

As a result, you may end up paying for the funeral before you recoup its costs. In situations where you cannot afford to pay for a funeral, you may need to turn to crowdfunding or apply for government assistance. The Social Security Administration also offers a one-time death benefit to widow(er)s or qualifying survivors of $255, which can help to offset a small amount of the costs.

To be safe, you may want to opt to keep funeral costs under the state median. Be aware that you are not guaranteed to win a wrongful death settlement until the final verdict is issued. You may want to ensure that you can afford the funeral costs when you incur them. In all cases, make sure to keep all the receipts and records from all related expenses to provide your wrongful death attorney.

Getting Help with Wrongful Death Cases

If your loved one has died as a result of negligence, you may be entitled to a wrongful death settlement. To learn more, contact us at Mazow | McCullough, PC today. We offer our sincere condolences on the death of your loved one. Although we can never undo the tragedy you suffered, we pledge to work diligently to pursue justice for your loved one.

Wrongful Death in Pedestrian Accidents (Podcast)

Pedestrian accidents are especially deadly due to the nature of a car hitting an unprotected individual. Attorneys Robert Mazow and Kevin McCullough, with Mazow McCullough law firm, discuss the steps to take after a loved one is killed in a wrongful death pedestrian accident.

John Maher: I’m John Maher and I’m here today with Robert Mazow and Kevin McCullough of the law firm Mazow McCullough, a personal injury law firm with offices in Massachusetts and New Hampshire. Today, we’re talking about wrongful death cases involving pedestrian accidents. Robert and Kevin, welcome.

Robert Mazow: Thank you, John.

Kevin McCullough: Thanks, John.

John: How common are fatal pedestrian accidents in Massachusetts and New Hampshire?

Robert: As far as common, we see a lot of them. I can’t give you numbers necessarily, but most of us are driving around, many are distracted, certainly a lot more cars on the road these days than there used to be, so we’re seeing a lot . . . unfortunately, we’re seeing a lot of pedestrian motor vehicle wrongful death crashes. Thankfully in Massachusetts and New Hampshire, there are very strong state police accident reconstruction teams that are able to go onto the scene and to work on these cases, but the unfortunate fact is that we’re seeing a lot.

John: And certainly with pedestrian accidents where a person is hit by a car, it’s much more likely that there’s going to be a death in that type of accident than if it was a car and another car.

Robert: Of course. Obviously the pedestrian, either they’re walking or on a bicycle or in no position to be able to protect themselves from whatever tonnage happens to be striking them. We’re either seeing very severe injuries or many times, unfortunately, death when a person is struck by a vehicle.

Determining Fault in a Pedestrian Accident

John: Who is usually at fault in a pedestrian accident?

Kevin: John, determining “at fault” can be extremely difficult after the fact, as Rob alluded to a moment ago. With wrongful death claims in Massachusetts and New Hampshire, the state police gets involved and does a thorough investigation, a reconstruction, and a crash analysis. But, it’s all after the fact and they do the same investigation whether there were multiple witnesses or no witnesses and there are so many different factors that can come into play when you’re assessing responsibility, whether it was on a main roadway, a side street, a speed limit involved, if we can calculate or determine how fast the vehicle was going at the time of the incident, weather conditions, what people are wearing for clothing.

When you’re involved in a case like this and you’ve lost a family member and you’re considering who to hire as an attorney or a law firm, you want to make sure you go to the law firm that not only knows what they’re doing and how to do it, but they’re willing to go through those steps — as many steps as necessary — to conduct that investigation and to make a good assessment of who’s at fault and who’s responsible in order to pursue that client.

Investigating a Pedestrian Accident

John: You mentioned that the police do their own assessment and investigation into the accident. Do you as attorneys also do a separate investigation?

Robert: We actually — if we can, if we’re on notice soon enough — we have our own group of experts that we work with. We try to get them to the scene of the crash so they can take their own measurements, so they can look at the vehicle, crash data information, so they can speak to witnesses, because we need to gather information just like the state police need to gather information, because the family is counting on us to provide them with information. Sometimes, [with] the state police, it takes many, many months sometimes for them to come to a conclusion, so we want to make sure that we can have as much information as we possibly can, and yes, we do have excellent, top-notch experts that we send out to the scene on occasion.

Pedestrian Wrongful Death Lawsuit Considerations

John: Okay. What are some of the things that make a pedestrian wrongful death lawsuit different from other types of lawsuits?

Kevin: Certainly the emotional aspect that goes into it from the initial meeting with the clients and the family members of the pedestrian who was hit, and walking through the handling of an estate, whether it’s at the probate court or working with other attorneys to be able to move forward with a claim and have a legal entity to move forward with a lawsuit against the at-fault driver, up through establishing and calculating the damages. These are horrific, horrific crashes and incidents involving death, sometimes there’s more suffering involved than other cases depending on how the collision occurs or how the person passes. There are so many different levels of investigation to help prove the claim, but also when you’re calculating the different components of damages and how to pursue those damages and present those damages on behalf of the estate and the family members.

Insurance Coverage of Pedestrian Wrongful Death Accidents

John: Rob, can you talk a little bit about insurance coverage and how that comes into play in these types of pedestrian wrongful death lawsuits?

Robert: Sure. When a pedestrian is killed as a result of being struck by a motor vehicle, the motor vehicle’s insurance becomes the primary layer of insurance. It would be the one responsible for paying for any burial, funeral expenses up to a certain point, medical bills if there are any for ambulance transportation. If the pedestrian had some opportunity to live and receive treatment before they passed, there would be certain medical bills that would be taken care of, and then if we’re able to establish that the motor vehicle was at fault, there would be a layer of coverage available to pay for the compensation for the pain and suffering, for the actual wrongful death benefits.

If the pedestrian themselves has certain insurance coverages available, things like what’s called ‘underinsurance motor vehicle coverage’, we could then look to that insurance policy to provide any excess insurance. If the vehicle that struck the pedestrian and killed them was uninsured, we can look at the pedestrian’s own insurance coverage uninsured coverage to look for coverage in that aspect as well.

John: So even though as a pedestrian you’re not driving a vehicle, your own car insurance can come into play.

Robert: That’s correct.

John: Okay. That’s really great information, Robert and Kevin. Thank you again for speaking with me today.

Robert: Thank you, John.

Kevin: Thank you, John.

John: For more information on personal injury cases, visit the firm’s website at helpinginjured.com or call (855) 693-9084.

Wrongful Death in Nursing Homes (Podcast)

While it may be difficult to tie nursing home neglect to wrongful death, it’s important to understand what a family can do in the event of their loved one’s death. Kevin McCullough of Mazow McCullough law firm talks about how nursing home wrongful death cases are different than other wrongful death cases. Listen or read more to find out about wrongful death in nursing homes.

John Maher: Hi, I’m John Maher, and I’m here today with Kevin McCullough of the law firm of Mazow McCullough, a personal injury law firm with offices in Massachusetts and New Hampshire. Today, we’re talking about wrongful death cases involving nursing homes. Welcome, Kevin.

Kevin McCullough: Thank you, John.

John: So Kevin, how common are wrongful death cases involving nursing homes?

Kevin: You know, John, unfortunately they are quite common, in that people are living longer. They’re unable to take care of themselves, and/or don’t have family members who are able to take them in and take care of them. So, we’re seeing more and more people going into nursing homes or assisted living facilities, which leads to more issues and incidents resulting in wrongful death occurring at those facilities.

Nursing Home Neglect May Lead to Death

John: We hear a lot about nursing home neglect or abuse happening in nursing homes. Are those things related to actual fatalities in nursing homes as well?

Kevin: They can be. We see a lot more on the neglect side than we do on the abuse side. It does occur, but it is rare to have staff members proactively abusing or hurting residents at nursing homes or nursing facilities. But, something that is quite common is the neglect aspect, and that usually results in the facilities having too many patients that they can handle and just not enough staff to take care of the patients. So, patients are sitting for longer periods of time, whether it’s on the same sheets on their bed, unable to have their bed pans changed or unable to get assistance to and from the bathroom, different dietary restrictions, unable to get some help with eating or food, or just simply getting from their room to the dining area to get a meal. So, we are seeing a lot more of the neglect side and neglect type cases at these nursing facilities.

John: Okay, so because that cause is really the lack of care or something not happening, does that make it very difficult to tell if a loved one has died of natural causes or of wrongful death because of that neglect?

Kevin: You know, oftentimes it can be difficult. If someone suffers a fall at a nursing facility, it’s easy to pinpoint that trauma or that incident resulting in death, but the neglect cases over time can be difficult if they do lead to death, or a wrongful death claim can be difficult to trace or track. It’s important, as family members, when you go up to visit a loved one, to be mindful of your surroundings, of what you’re seeing, the interaction with the staff, and you and the staff and your family member or loved one. If you notice things that just seem out of the ordinary or don’t make sense, to speak up, ask questions, document things on your end — because if something happens resulting in death and it’s a result of a series of activity or failing to do a certain activity over time, it can be difficult to prove or to trace back to the staff of the nursing facility. So, you do want to be mindful of that when you’re visiting and going up to take care of a loved one or family member.

How Nursing Home Wrongful Death Cases are Different

John: Okay. What are some of the things that make a nursing home wrongful death lawsuit different from other types of lawsuits?

Kevin: You know, John, there are a number of different things that make nursing home wrongful death claims different from other types of claims. What we see, and we’ve seen it for years now and we still see it, is the difficulty that can come about with proving causation of the death to a certain event or a certain incident, in that the people who are living at these assisted living facilities are just either older or physically unable to do certain things. When you’re trying to prove causation of an event or that a certain event caused someone to die or pass away, it can be difficult if someone has a long list of preexisting issues or preexisting health problems.

Those are some of the complexities that we work through that are a little bit different in the nursing home facility arena, but we also see the insurance companies for these nursing facilities are so much more proactive these days. What I mean by that is they are literally changing the game in the playing field in that when you now go to bring a family member, a loved one, to a nursing facility and you sit down to do that initial meeting or that initial intake, the residency agreement that the facilities are having the patients and the family members sign are legal and binding contracts. These nursing facilities are adding language to those contracts to make it difficult to pursue the nursing facility or staff member if they have done something wrong, and difficult to recover from the nursing facility or staff member if they’ve done something wrong.

A good example of that is they are including these arbitration provisions in these residency agreements, which basically completely takes away the ability to sue in court and have your day in court before a jury to decide whether or not the nursing facility or staff members have done anything wrong. And if what they did do wrong or fail to do led to the death of your family member or loved one, they’re changing the arena that you are allowed to fight and pursue, and they’re forcing these families to go to arbitration, which is . . . it can be a pretty cold procedure that unfolds. It’s not nearly as formal as a court proceeding, but it takes away a lot of the different rights and remedies that you may otherwise have in court by adding this language to those residency agreements in contracts.

John: Who is the arbitrator if you do end up going into arbitration? Who gets to decide who that arbitrator is?

Kevin: That’s a great question, John. What we’re seeing so far is that the nursing facilities are requiring these disputes to be arbitrated, but they don’t specifically name arbitrators or the names of individuals who may hear the evidence. The provisions that we’re seeing in these contracts simply state that your only forum to seek redress is by way of arbitration, and if the parties cannot agree upon an arbitrator, they each get to select a proposed arbitrator, and then the two arbitrators actually decide on the ultimate arbitrator who will hear the case and make findings on the case. Great question, though, John.

John: Yeah, so it would be important then to choose an arbitrator that you feel really comfortable with. If you have gotten into this situation where you have signed one of these contracts like you said, that has an arbitration clause in it; at least you’ll be able to get somebody on your side who you can trust.

Kevin: Yeah, it would be great if these facilities would allow some input from the residents or the family members who are coming to them with their family members and loved ones, but what we’re seeing is that they just simply add this language into the contracts, which leaves it out there with some uncertainty as far as who hears it. But, as you mentioned, there is a little bit of comfort level in that if you can’t agree upon an arbitrator with that nursing facility that you may be battling with or against because of the loss of a loved one, you do get to select an arbitrator who can help lead you to the ultimate hearing officer who will make the decisions on that case.

John: All right, that’s really great information, Kevin. Thanks again for speaking with me today.

Kevin: Thanks for having me, John.

John: For more information on personal injury cases, visit the firm’s website at helpinginjured.com, or call 855-693-9084.

Wrongful Death in Motorcycle Accidents (Podcast)

From helmets to obeying the rules of the road, there are many factors that could contribute to a wrongful death in a motorcycle accident. Personal injury attorneys Robert Mazow and Kevin McCullough discuss what to do if a loved one dies as a result of a motorcycle accident. Listen or read more to learn more.

John Maher: Hey, I’m John Maher. I’m here today with Robert Mazow and Kevin McCullough of the Law Office of Mazow McCullough, the personal injury law firm with offices in Massachusetts and New Hampshire. Today, we’re talking about wrongful death involving motorcycle accidents. Robert and Kevin, welcome.

Robert Mazow: Thanks, John.

Kevin McCullough: Thank you, John.

John: So, what causes a motorcycle accident? What are some of the most common causes, and why are so many of them fatal?

Kevin: We see a number of different reasons that motorcycle collisions occur or causes for motorcycle collisions, ranging from drivers of motorcycles and/or motor vehicles just simply not paying attention to speed issues or going beyond the speed limit, not paying attention to traffic signals, not being aware of their surroundings or how close they are to other vehicles, whether it’s on a highway and a car is changing lanes and they just don’t see that motorcycle in the blind spot. But, here in the northeast part of the country, there are so many other reasons why we see them. In the winter months when the roads are slippery and we’re seeing salt and sand placed on the roadways to make the road safe, that’s a very dangerous hazardous condition for someone driving a motorcycle, whether they pull it out on a nice a winter day when it’s not too cold out or those early rides in the spring season when there’s still a lot of sand and debris on the roadway, it can be very dangerous out there.

So, in addition to the typical reasons that somebody might think about for motorcycle collisions, we also have some extra hazards and factors here in this part of the country that we have to deal with.

John: Okay. And then of course, with a motorcycle as compared to a car or a truck, you just have so much less protection as a driver, that you’re bound to get thrown onto the road, and that’s going to be potentially fatal.

Robert: Right. Well, we certainly see a lot more likelihood of a death if a motorcycle is involved than if two cars are involved. Motorcyclists clearly are not protected with steel barriers like a person in a car is protected. I mean, a motorcyclist — a smart motorcyclist — will wear their leathers, they’ll wear their helmet. But we know that many motorcyclists — certainly, New Hampshire motorcyclists — there’s no requirement that they wear a helmet. Unfortunately, we see some pretty terrible injuries when a motorcycle is struck by a vehicle, and sometimes, it leads to death.

Helmet Laws in New Hampshire and Massachusetts

John: You bring up a good point, which is that in New Hampshire, there is no helmet law, but in Massachusetts there is. How does that make things different in terms of how you approach the case, you know, involving somebody who has been killed, maybe in Massachusetts when maybe they haven’t been wearing their helmet like they’re required to?

Robert: I think as far as the liability part of the case, the what happened, who was at fault, whether a person was wearing a helmet or not, it doesn’t make a difference. If a driver of the vehicle is texting and they strike a motorcyclist and the motorcyclist has done nothing wrong, yet the motorcyclist isn’t wearing his helmet, it doesn’t mean it’s the motorcyclists fault. Now, if the motorcyclist dies as a result, strictly of a head injury, the smart defense attorney, the person defending the vehicle that was at fault, will certainly raise, and we’ll get an expert to say, “Had the motorcyclist been wearing a helmet, they would not have died.” Of course, there may be another expert on the other side that will possibly say, “It doesn’t matter if they were wearing a helmet or not. The severity of the impact was large enough that would have caused death anyway.”

So, if the law says to wear a helmet, we certainly encourage you to wear a helmet, but it’s not necessarily going to be a deciding factor if there’s a crash.

Determining Fault in a Motorcycle Accident

John: Okay. How do you determine fault in a motorcycle accident? Is it different than a normal car accident?

Kevin: It’s pretty similar, John, in that there are rules of the roadway, there are traffic signals, traffic signs, speed limits. The driver of a motorcycle and a motor vehicle are both obligated to follow those rules of the road to obey the traffic signals, to obey the speed limit. Those are the typical reasons that collisions may occur, whether someone’s speeding or just not paying attention. But, as I mentioned earlier, when you’re driving a motorcycle, there are so many different factors involved. Being exposed to the elements, whether it’s weather or the roads being slick, but just, you know, not being seen by people driving a motor vehicle. Those are a number of different reasons of why these things occur and going to the extent of the damages of when you’re exposed.

John: Are there any other aspects of motorcycle accident wrongful death lawsuits that make them different from other types of lawsuits?

Robert: As far as the lawsuit is concerned, they’re pretty straight-forward. If it’s determined that a motor vehicle causes a crash that leads to the death of a motorcyclist, a lawsuit would be filed. It would include claims for negligence. It would include claims for possibly reckless driving, gross negligence. But they’re fairly similar to other types of motor vehicle lawsuits.

John: Okay. That’s great information. Rob and Kevin, thanks again for speaking with me today.

Robert: Thanks, John.

Kevin: Thank you, John.

John: For more information on personal injury cases, visit the firm’s website at helpinginjured.com or call 855-693-9084.

Wrongful Death Involving Commercial Vehicles (Podcast)

Commercial vehicles have a lot at stake, and some companies may go to great lengths to ensure they are covered in a wrongful death lawsuit. Attorneys Robert Mazow and Kevin McCullough of Mazow McCullough law firm discuss their approach to wrongful death cases involving commercial vehicles. Listen or read more to find out more.

John Maher: Hi, I’m John Maher. I’m here today with Robert Mazow and Kevin McCullough at the law firm of Mazow-McCullough, a personal injury law firm with offices in Massachusetts and New Hampshire. Today we’re talking about wrongful death cases involving commercial vehicles. Robert and Kevin, welcome.

Robert Mazow: Thank you, John.

Kevin McCullough: Thank you, John.

John: So, what makes commercial vehicle wrongful death lawsuits different from other types of lawsuits?

Robert: What we see in a wrongful death incident involving a commercial vehicle is that the driver tends to be an employee of the person, or the corporation that owns the vehicle. So, first and foremost, there are at least two parties involved in this lawsuit or in this claim, where, otherwise, in a straightforward car accident or slip-and-fall, there may be just one defendant and one plaintiff.

We need to understand what the relationship is between the driver of the vehicle and the commercial owner of the vehicle. We need to know whether they were on the clock at the time, where they were going, where they were coming from, whether they should have been not driving at the time, what their driving history is, what their criminal history might be, and whether or not the employer who owns the vehicle or owns the truck has done a proper background check to make sure that that driver should be behind that wheel.

Claims that we’re going to be looking at are going to be involved with not just negligence, but negligent hiring, negligent training, negligent supervision. I mean, all things that go into the responsibility of the commercial owner of that vehicle because the employer is responsible for the negligent acts of their employee, and we want to make sure that if they cause harm, if they cause injury, if they cause death that that employer is also held responsible.

Commercial Vehicle Drivers and Distracted Driving

John: Distracted driving is a big factor these days in all types of accidents involving vehicles. Is distracted driving often the cause of a commercial vehicle wrongful death case?

Kevin: It is, John. With a lot of these commercial vehicles, they’re taking advantage of the technology these days as well. They have GPS in the vehicles to track what the employee is doing and where he’s going, but they also have the ability to communicate directly with the employees to give new assignments or to redirect an assignment. That’s causing these employees to take a look at their phone, to take a look at the GPS, to take a look at their responsibilities for that day or that daily worksheet, and to alter what they’re supposed to be doing or where they’re going. Oftentimes, they’re doing that while they’re driving, while they’re stopped at that red light, while they’re stopped at that stop sign — just not paying attention to what’s going on around them. Trying to be a good employee, trying to get to that next job, but by not paying attention to the roadway, ultimately causing injury and incidents.

Robert: This technology that Kevin talks about goes both ways because what we’re finding in bus crashes, in truck crashes, that oftentimes there are videos that the employers have on their employee because they want to make sure that they’re keeping their eye on their employee. There’s video cameras facing in, there’s video cameras facing out. What we’re able to do is — if we can get access to this video, we can actually see these drivers while they’re driving, while they’re stopped at a stop sign, while they’re doing something, looking at their phone, looking at paperwork, doing the very things that their employer claims [they] are not supposed to be doing and that’s what’s causing these crashes. But we’re able to sometimes get access to these videos, which is part of the technology that Kevin was talking about.

Accessing Onboard Video Footage

John: That sounds like that’s a really good reason, if you don’t have any other reason, to hire an attorney because I think that, myself as an average person, I wouldn’t be able to get access to the onboard cameras on a commercial vehicle, but as attorneys you are able to help with that.

Robert: Well, we’re able to help with it. Obviously the employer is not going to be anxious to be giving that to us. So, what we have to do is, if we find out that there are cameras, we go to court, we get the court to compel that that information be given to us. It does take some time, but when you get it and it’s helpful, it’s really the home run of all home runs.

John: Right.

Kevin: You can imagine, John, that if there is video footage that hurts the company, they’re not going to want to give it up. If they have to give it up to a plaintiff’s attorney, they’re going to fight as hard as they can. So, that goes directly to the point that if you’re involved in a collision with a commercial vehicle, you should retain an attorney quickly because there are certain obligations that these companies have to retain video footage or information whether it helps them or not. But, if enough time goes by, they can avoid those obligations and get rid of or destroy the video footage or the documents that may harm them in a way that they won’t be penalized.

But, if you hire an attorney quickly, and you can get involved, simply sending a letter to preserve that material — we’re not saying you have to give it to us right now, Mr. Company, but you have to preserve it and we’re giving you an affirmative obligation to preserve that information. So, when we do move forward and we do actually request it, it should be there. If that material is gone or destroyed at that point, if we’re involved early enough, we can use that to our advantage during the litigation process, whether it’s proving the liability of the case or having the court intervene and take certain defenses off the table for the defendant because they refused or failed to preserve that information. So, like Rob mentioned, it cuts both ways, but getting an attorney early on is only going to help you prove your case and gather that information.

Building a Case Against a Commercial Vehicle Company

John: Okay. What are some other aspects of going up against a large company? Maybe you’ve been injured or a family member has been killed in an accident involving a nationwide trucking company or a nationwide delivery service, or something like that. How does that change the overall dynamic of a case?

Robert: I mean, we tend to see, if it’s a large company, we tend to see a large defense firm representing them. These companies don’t want to have judgments against them, they don’t want to have to pay out large settlements or large judgments, so they’re going to do what they need to do, or what they feel they need to do to aggressively defend themselves. Of course, if you’ve got the right plaintiff’s attorney, they’re going to be able to go toe-to-toe with the defensive attorneys, with the insurance companies to hopefully obtain a good result for the injured party.

John: All right. That’s really great information. Rob and Kevin, thanks again for speaking with me today.

Kevin: Thanks, John.

Robert: Thank you, John.

John: For more information on personal injury cases and wrongful death cases visit the firm’s website at helpinginjured.com or call 855-693-9084.

Wrongful Death in Auto Accidents (Podcast)

If you’ve lost a loved one due to an auto accident, figuring what to do next is difficult. Attorneys Robert Mazow and Kevin McCullough, of Mazow McCullough law firm, talk about the legal steps to take after a wrongful death caused by an auto accident. Listen or read more to find out what to do after losing a loved one in a car accident.

John Maher: Hi, I’m John Maher, and I’m here today with Robert Mazow and Kevin McCullough of the law firm of Mazow McCullough, a personal injury law firm with offices in Massachusetts and New Hampshire. Today, we’re going to be talking about wrongful death auto accident cases. Robert and Kevin, welcome.

Kevin McCullough: Thanks, John.

Robert Mazow: Thank you, John.

John: You know, in a wrongful death case where an auto accident is involved, how is fault or liability determined? Is there such a thing as shared fault between both parties?

Kevin: Yes, John. The analysis and investigation into determining fault in wrongful death claims can be difficult and complex. They may involve an accident reconstruction, witness statements, pictures of the scene, pictures of the vehicles, damage analysis — and it can be assessed against multiple parties. Some of the differences between Massachusetts and New Hampshire can be strategic differences in that, here in Massachusetts, we have a rule of law called joint and several liability, which means that you can sue multiple parties and recover your damages against those multiple parties.

If there are two people at fault for a wrongful death claim in Massachusetts, regardless of the percentages of fault between the two defendants or responsible parties, you can recover 100% of your damages against one or both of those defendants. In Massachusetts, if you’re a defendant in a wrongful death claim, you could be paying more than your proportionate share of the damages of which you caused in that particular incident. Then, it’s on you as the defendant to pursue other defendants to be reimbursed. It’s actually pretty good for a plaintiff or a family in Massachusetts pursuing a wrongful death claim to have multiple parties available to you, which may lend to additional coverages or insurance coverages that may be available to you.

In New Hampshire, it can be different. New Hampshire has what’s called a pro rata payment. What that means is, as a defendant, you’re only responsible to pay the exact proportionate share or monetary amount that the jury finds to be directly attributed to you. They do separate out those damages on verdict slips in New Hampshire and Massachusetts. They can be different and they can impact the strategy of how the attorney for the family of the loved one who was lost in pursuing their claim and pursuing multiple defendants and how they do that.

John: Okay, so in New Hampshire, if you’re found to only be 50% at fault for a claim, then you’d only be responsible for paying 50% of the damages. Does that work out that way?

Kevin: That’s correct, John. In Massachusetts, if you’re found to be 1% or more at fault as a defendant, you can be paying 100% of those damages.

How to Determine Damages in an Auto Accident Wrongful Death Case

John: Okay. How are damages different in a wrongful death auto accident type of case, versus other types of accidents?

Robert: When you’re dealing with a wrongful death case, your damages can be much broader than in your standard personal injury case. First of all, if a person has some period that they have lived . . . some period after the accident that they’re in the hospital or that they’re alive . . . there’s that period of pain and suffering that’s part of the damages. The wrongful death damages themselves could include the loss of care and comfort that they provided to their loved ones, to their beneficiaries, any financial advice or financial support that they provided to their loved ones.

Certainly, if they were working at the time, their loss of future earning capacity can be a significant damage that we’d have to bring in a forensic accountant to give us an idea of what those numbers could look like. The damages, obviously — there’s burial expenses and funeral expenses and medical bills, if there was some period of time where the person received some medical treatment. There are many, many different elements of damages that will be available to the estate and the family of the loved one who passed away.

When to Talk to an Attorney

John: When should the family of a loved one involved in a wrongful death auto accident case talk to an attorney, and what happens after that?

Kevin: They should talk to an attorney immediately after the incident or after the loss of the loved one. It’s so important to gather information early on in a wrongful death claim, not only with just what happened and how it happened, but also having the documents available to calculate those recoverable damages. As Rob mentioned, whether it is lost wages that are no longer available to the family, those future earnings, those are things that experts need to be involved in to quantify and calculate, and the sooner that the attorneys can get involved in the case, the sooner they can determine and assess those damages and help present those damages to the at fault party.

John: Robert, any final thoughts on wrongful death auto accident cases?

Robert: I think that, you know, when you’re dealing with the serious emotional overload of the death of a loved one, it’s important to be able to go to some place where you can feel comfortable with the advice that you’re given — feel that there is not going to be any pressure put on you to do something — but to a place that’s going to take the situation very seriously. Here at our office, we clearly get to work right away. We work with families to make sure that all avenues are gone down and every stone is turned over to make sure that we can get the family what they can get.

John: All right, that’s great information and advice. Robert and Kevin, thank you for speaking with me today.

Robert: Thanks, John.

Kevin: Thank you, John.

John: For more information on personal injury cases and wrongful death cases, visit the firm’s website at helpinginjured.com or call 855-693-9084.

What to Expect When You Meet with a Wrongful Death Attorney

Wrongful Death AttorneyWhen a loved one dies, it always takes an enormous toll on the people left behind. When your loved one is killed through the negligence or wrongdoing of someone else, there is even more heartache and stress. In addition to dealing with the emotional aftermath of the loss, you may also be facing financial hardship based on the loss of income from your lost loved one. We may be able to help.

While nothing can bring back your loved one, a wrongful death lawsuit may be able to help you get the financial justice you deserve. You’re probably wondering, what happens in a wrongful death lawsuit? What does the process look like? To prepare you, here’s a look at the essentials.

What Is a Wrongful Death?

A wrongful death is when a person dies due to the negligence or malicious but often unintentional actions of another person. A wrongful death case is a civil action, not a criminal one, but criminal charges may be tried separately in these cases.

If criminal charges are not brought against the wrongful party, they can be still charged in a civil court. Similarly, even if the defendant is found innocent in a criminal case, they can still be charged in a civil case. The standards of proof are different in each of these types of cases, which is why someone may escape charges in a criminal case but still face liability in a civil case. The charges are also different, which is why the double jeopardy law doesn’t come into play.

What Does the Wrongful Death Process Look Like?

There are many phases of a wrongful death suit, and each case is slightly different depending on the details. The process can take months or even years, but regardless of the time involved, you can usually expect to see the following elements:

  • Free Case Evaluation – Most wrongful death attorneys start with a free case evaluation. During that meeting, you chat with the attorney about your case. They decide if you should move forward with a lawsuit, and you decide if you want to work with that attorney.
  • Filing a Complaint – To get the case started, the wrongful death attorney will formally file a complaint or a writ of summons, letting the courts and the other party know you are commencing a lawsuit. Then, the other party has to respond to the complaint.
  • Discovery – This is the beginning of the case where the lawyers from each side exchange information about the details of the case, including paperwork, depositions, and any evidence that has been gathered.
  • Legal Motions – Both sides make legal arguments based on the information gathered in the discovery process.
  • Settlement Conference – A judge can work with the attorneys on both sides to mediate a settlement offer that works for all parties, saving time and money.
  • Wrongful Death Trial – If no settlement is reached, the next step is to take the wrongful death case to trial. At this time, the attorneys present evidence, question witnesses, and argue the case. Then, a jury or judge decides the outcome of the case and the amount of damages owed.
  • Appeals – If either side doesn’t agree with the outcome, they have a certain amount of time to file an appeal.
  • Collection Process – After the verdict, you will be able to begin collecting damages if the case went in your favor.

Who Can File a Wrongful Death Suit?

Usually, a spouse, parent, child, or close relative can file a wrongful death suit. However, in Massachusetts, you need to be the administrator or executor of the deceased’s estate to file a suit. If you aren’t sure whether or not you have the right to file a wrongful death suit, contact an attorney, and they can help you with the specifics.

What Kinds of Damages Can Be Collected?

It is impossible to put a price tag on the life of a loved one. There are many things that can never be reduced to a number. However, the law does allow you to try and recover the following through a wrongful death suit:

  • Loss of future wages
  • Final medical costs
  • Funeral and burial costs
  • Loss of inheritance
  • Loss of companionship
  • Attorney Fees

What Questions Should You Ask When Looking for An Attorney?

When trying to find an attorney to handle your wrongful death case, you might want to ask some of the following questions:

  • Do you have time to devote to my case? – Make sure the attorney you choose does not have such a big caseload that they don’t have time to work on your case.
  • Have you handled wrongful death cases before? – Ideally, the attorney you choose should have a proven track record in dealing with these kinds of cases. Also, make sure that the firm you choose has the financial resources to devote to putting your case together.
  • How much is my case worth? – Your attorney might not have the answer to that question right away, but they should be able to tell you the steps they will take and the research they will do to make sure you are fairly compensated

Dealing with the loss of a loved one under these circumstances is more than anyone should ever have to bear, but you should not have to suffer financially as well. Hiring an attorney to handle your wrongful death suit can help to bring you some peace and comfort in these trying times.

At Mazow | McCullough, PC, we always have time to devote to our clients and we are very experienced in the realm of wrongful death cases. To set up a free case evaluation, contact us at Mazow | McCullough, PC today.

Should You Settle Your Wrongful Death Claim?

Wrongful Death ClaimWhile it is always difficult to lose a family member, it is especially devastating when you need the financial support of the person who died or when the death was caused by the negligence of another party. If your family member recently died due to negligence, carelessness, incompetence, or failure to act, you may be entitled to financial compensation for wrongful death.

Even if cases where no one is criminally responsible for the death, you may still be able to hold someone civilly liable through a wrongful death claim. A wrongful death claim is special type of personal injury claim brought forward by a surviving family member of someone who was killed.

Many wrongful death cases go to trial, but they don’t always go to court. In some cases, you may decide to accept a settlement. Typically, you have a choice between accepting the settlement and moving forward with the trial. When deciding if you should settle, you should keep the following elements in mind.

The Value of the Settlement

In a court case, the judge decides on the value of loss. With a settlement, the offer can be proposed by either the plaintiff or the defendant, and usually, these parties go back and forth until they agree on a sum. When you’re trying to decide whether or not you should settle, look closely at the amount of the settlement. Ideally, you want to ensure that the settlement will cover your current and future damages. For instance, you may need funds to pay your loved one’s final medical bills or funeral expenses, as well as money to cover the loss of their income.

It’s also important to remember that some wrongful death attorneys charge higher contingency fees if the case goes to trial. They may incur a lot of additional expenses through the trial that may be deducted from the final award. As a result, you may end up with less money after a trial, even if the award is greater than the settlement offer.

Length of Time for the Proceedings

Lawsuits can be long and emotional exhausting. They may drag on, and some defendants purposefully drag on the case to tire out the other side. After the loss of a loved one, you may not want to deal with a long, stressful trial. Instead, you may want to focus on grieving and healing. By setting out of court, you complete the process a lot faster. If the wrongful death settlement covers your expenses, you may want to give yourself a break by settling out of court. However, don’t give up on justice if the defendant is purposefully dragging the case out just so you’ll settle.

Possible Bad Publicity?

Usually, this issue only concerns the defendant, and if they are worried about the case reflecting poorly on their business or personal reputation, they may want to settle quickly. If you believe that the defendant is trying to settle for this reason, you may want to talk with your lawyer about negotiating a higher settlement. At the same time, you should think of any effects press around the case may have on you personally. You may prefer to stay out of the limelight.

The Strength of Your Case

Remember, a settlement is basically money in your pocket. When you agree to a settlement, the funds are guaranteed. In contrast, if you move forward toward a trial, you are not guaranteed to win. If you or your wrongful death attorney is worried about your case, you may want to accept the settlement. Don’t rule out going to trial though if you feel you have a strong case and more to gain by taking the risk.

Mediation or Arbitration?

Sometimes, there can be middle ground between accepting a settlement and going to court. In particular, you may want to talk with your lawyer about mediation or arbitration. With mediation, both parties meet and talk with a mediator, who offers their expertise and advice regarding how the case could be settled and how money should be awarded. Then, you, the defendant, and your attorneys decide if you want to agree to the mediator’s ideas.

In contrast, if you agree to arbitration, both parties meet and talk with an arbitrator who then makes a ruling based on his or her interpretation of the situation. Although both of these options can involved a few different costs, they tend to be less expensive than going through a trial.

If you have lost a loved you and you need help with a wrongful death case, contact us today. At Mazow | McCullough, PC, we can offer you a free case evaluation and help you decide the best route forward with your case.

FEATURED VIDEOAbout Mazow | McCullough, PC

FREE EBOOK

FREE CASE EVALUATION No Obligation Consultation

Fill out my online form.