Contrary to popular belief, you can still get compensation in a wrongful death lawsuit if your loved one was at fault. The settlement is reduced based on the portion of blame assigned to your loved one. If your loved one was responsible for more than half of the incident, you may not be entitled to any compensation at all. Keep reading to learn about comparative liability.
What is Comparative Liability?
In wrongful death lawsuits, comparative liability or comparative negligence laws allow the courts to split the blame between defendants and claimants. In such a case, the claimant, or plaintiff, brings forward a wrongful death lawsuit. The claim is that the defendant’s negligence or recklessness caused the death of the claimant’s loved one.
In response, the defendant argues that the victim was at fault in their own death. After hearing evidence and testimony presented by both sides, the judge or jury assigns blame to the defendant and/or the deceased. They also determine the settlement amount, which may be reduced based on any comparative liability assigned to the victim.
Example of a Wrongful Death Lawsuit with Comparative Liability
For an example of comparative liability in wrongful death lawsuits, imagine your loved one is hit by a commercial truck. In response, you bring forward a wrongful death suit. The lawyers for the trucking company claim your loved one was crossing the street illegally and that their actions contributed to the accident.
Based on that information, the judge and jury determine that your loved one was responsible for 10% of the accident. As a result, your settlement is reduced by 10%.
Comparative Liability and Wrongful Death Settlements
Imagine that the jury in your case decided on a $500,000 settlement, They then determined that your loved one was responsible for 30% of the accident. In this situation, the settlement is reduced by 30%, bringing the settlement down to $350,000.
Both Massachusetts and New Hampshire follow the 51% Bar Rule. Under this rule, a plaintiff cannot recover a settlement if the courts decide the plaintiff is responsible for 51% or more of the accident. In other words, if the wrongful death victim bears more of the responsibility than the defendants, you cannot recover a settlement.
Proving Comparative Negligence in a Wrongful Death Suit
In wrongful death cases, the defendant cannot just claim that your loved one was partially to blame. They must provide proof that your loved one was responsible for part of the incident.
Most wrongful death cases allow for this type of defense. However, under Massachusetts law, the defendant cannot claim comparative negligence based on breach of warranty in wrongful death cases related to product liability.
For example, if your loved one died due to a dangerous product, you would bring a wrongful death lawsuit against the product’s manufacturer. The manufacturer’s lawyers may claim that your loved one was partially at fault for misusing the product. However, the attorneys cannot bring forward a defense based on the idea that your loved one took actions that negated the product’s warranty.
Fighting Comparative Liability Claims
Comparative liability can reduce your wrongful death settlement. Insurance companies often try to bring comparative liability into play during wrongful death cases. This accusation can be emotionally and financially damaging to survivors. To ensure you are prepared to fight this type of defense, you need an experienced wrongful death lawyer.
At Mazow | McCullough, PC, we provide our clients with a personal level of assistance. We understand the devastation of losing a loved one due to another’s negligence. If we take on your case, we will work diligently to get you the fairest settlement possible. To learn more, contact us today.
Everyone grieves differently after the loss of a loved one. However, wrongful death survivors may experience more intense and complicated grief than most. When someone else’s negligent actions claim the life of your loved one, you may experience the following:
After a loved one dies, many people are consumed by the question of “why.” Why did their loved one die? Why did this loss happen now? Questions about the meaning of life, death, spirituality, and similar concepts may arise. This type of questioning tends to be more intense when a loved one dies unexpectedly due to violent or negligent actions of another party.
Deep Denial and Shock
Because of the sudden and sometimes violent nature of wrongful deaths, survivors may experience a deep level of denial and shock. Generally, people think of shock as the first stage of grief. In fact, the Kubler-Ross model defines the five stages of grief as denial, anger, bargaining, depression, and acceptance.
However, these stages were initially developed to map how people accept terminal diagnoses. If you are grieving the loss of a loved one, you may experience all these stages, though not necessarily in order or one at a time.
When dealing with a wrongful death, you may experience shock and denial as well as other emotions. You may even circle back to shock frequently throughout the grieving process. Many find that they experience additional stages of grief after a wrongful death.
When dealing with the wrongful death of a loved one, you may feel angrier than other grieving people. You may be furious with the person or entity who carelessly caused your loved one’s death. Anger is a natural response to this type of loss, however, it’s important to work on finding constructive ways to deal with this powerful emotion.
Some wrongful death survivors and victims of violent crimes find that forgiveness helps reduce anger. However, you are not obligated to forgive the person who caused your loved one’s death. That is a personal choice and if you do decide to forgive, remember that you set the timeline. You don’t have to forgive based on anyone else’s terms.
Lack of Understanding from Others
Unfortunately, others may not understand what you’re dealing with after a wrongful death. Many people in your life may have never suffered through the death of a loved one, or perhaps they’ve lost loved ones to old age and illness. They might not understand how to support someone who is grieving after a sudden wrongful death. They may not be able to offer you the support you need through this time because they have not experienced it themselves.
Even those who have experienced the loss of a loved one and are empathetic to grief may not understand the complexities of your situation. Traumatic grief tends to differ substantially from other types of grief, and as a result, you may feel isolated or misunderstood. You may want to join a support group for wrongful death survivors or find a bereavement counselor who has experience with wrongful death.
Complicated grief can happen after a wrongful death. This type of grief involves having trouble living life and feeling intense sorrow for a year or more after the death. You may not be able to think about anything else. You may struggle with routine tasks and conversations or neglect to care for yourself.
Some people with complicated grief are consumed with reminders of their loved one. Others try to avoid those reminders. You may struggle to accept the death while feeling numb, detached, bitter, or isolated. All of these feelings are normal to an extent. Seek help if the symptoms of complicated grief are disrupting your ability to live a normal life.
In extreme cases, complicated grief can lead to suicidal thoughts or feelings. If you are thinking of harming yourself, call 911 or contact the suicide prevention lifeline at 1-800-273-8255. Support is available for you, right now.
Loss of Support
The death of a child, spouse, or close family member living with you can be extremely challenging. In addition to grieving the loss of that person, you also must deal with many secondary losses, including significant changes to your daily life. When dealing with the wrongful death of a close loved one, you may lose your emotional and financial support system.
If you lost a parent, you miss out on the guidance they would have provided throughout your life. If your spouse dies, you lose companionship and emotional support. These losses make dealing with wrongful death even more difficult.
After a wrongful death, you it’s hard to focus on grieving and reclaiming your life. You may have to deal with bringing forward a wrongful death lawsuit so that you can recoup damages related to the death.
It’s important to work with a lawyer who has successfully handled wrongful death cases and is committed to giving you compassionate, personalized attention. At Mazow | McCullough, PC, we offer our deepest sympathies as you deal with your loss. Although we can never undo this tragedy, we may be able to help you recover financially. Contact us today.
Although there can be a lot of overlap, fatal accidents and wrongful death fall into separate legal categories. A person’s death is considered an accident when it wasn’t caused by the purposeful or negligent actions of another person or entity. In contrast, wrongful death refers to deaths caused by the negligence of another party.
Example of a Fatal Accident
To demonstrate the difference between a fatal accident and a wrongful death, imagine someone is using a ladder. There is nothing defective about the ladder, and no one else is nearby. While on the ladder, the victim loses their balance, falls, and dies. In this situation, the death was simply an accident.
Example of a Wrongful Death
To illustrate a scenario in which falling off a ladder and dying may constitute wrongful death, imagine the manufacturer produces a ladder with a defect. This defect causes the ladder to buckle under the weight of a person, and the fall causes their death. In this situation, the manufacturer’s negligence likely caused the death, potentially turning the situation from an accident into a wrongful death.
In many cases, the line between an accidental and wrongful death is not as clear. For instance, if a vehicle strikes another vehicle, causing death to a passenger in the second vehicle, the collision may be an accident, or the driver may be judged negligent. This judgment will depend on whether the driver was texting or breaking other rules of the road. To increase the chances of having your case ruled a wrongful death, you should work with an experienced attorney.
Wrongful Death Versus Homicide
In the ladder scenario, imagine someone bumps into the ladder, destabilizes it, and causes the victim to fall and die. The death may be considered a tragic, fatal accident, but depending on the surrounding factors and the person’s intent, this incident may be regarded as homicide.
If the individual bumped into the ladder with the intent of killing the victim, they might be guilty of murder. If they bumped into the ladder due to negligence — if they were distracted while operating a forklift which ran into the ladder — they may be guilty of negligent homicide or manslaughter.
There are also categories of criminal homicide that can apply in situations where the person did not mean to hurt the victim. The above categories all fall under the umbrella of criminal law, but wrongful death is a civil matter. As a result, someone can face both criminal and civil legal issues, and the outcomes may be different as the burden of proof varies for each.
Now, imagine the person who bumps into the ladder gets charged with criminal homicide by the state, but the trial concludes that the person was not guilty. However, the victim’s family still believes the person’s actions lead to their loved one’s death, so they bring forward a wrongful death suit. During the trial, the courts decide that the person is civilly liable. As a result, although the defendant was able to avoid criminal penalties such as prison time, they had to face civil penalties, namely compensating the victims for their loss.
Elements of a Wrongful Death Lawsuit
To be considered wrongful death, several elements need to be in place, including the following:
Duty of Care
The liable party needs to have a duty of care to the person who died. For instance, every time someone drives a motor vehicle, they have a duty of care to other drivers, bikers, and pedestrians on the road. Similarly, if someone runs a shop or a restaurant, they have a duty of care to their patrons to keep the premises in a reasonably safe manner.
In contrast, if the victim was trespassing on someone’s property, the property owner does not have a duty of care to that individual, and if they die while trespassing, their family likely doesn’t have the right to bring a lawsuit against the property owner.
The liable party must have breached their duty of care and acted negligently. For a driver, this can mean driving under the influence of drugs or alcohol or not following the rules of the road. A shop owner, in contrast, may breach their duty of care by not keeping their premises safe.
The courts may consider a manufacturer to have acted negligently if they knowingly produced a dangerous product, falsely advertised a product, or made other lethal errors. As you can see, the form of negligence can vary depending on the situation, and the relationship between the liable party and the victim.
Actions That Lead to Death
Additionally, the liable party’s negligence must have led to the victim’s death.
The victim’s family or loved ones must have suffered damages related to the death. In a wrongful death case, the damages include monetary damages such as the deceased person’s final medical bills, funeral expenses, and lost inheritance.
While some of these items are pegged to direct costs, others are more subjective, like pain and suffering or loss of consortium. To ensure you get the best possible outcome in your case, work with an experienced wrongful death attorney who understands how to evaluate these damages and has a history of obtaining fair settlements.
What to Do When You’re Unsure If a Death Was Wrongful
If your loved one has died and you’re unsure if it’s a fatal accident or a case of wrongful death, then you should consult with a wrongful death attorney. At Mazow | McCullough, PC, we can offer you a no-cost case evaluation. We’ll assess your situation to determine if your loved one died as a result of negligence. If applicable, we can help you identify the liable party and decide how to move forward.
Nothing can bring your loved one back, but we may be able to help you to get the justice you deserve after suffering such a monumental loss. To learn more, contact us today.
Pedestrians 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.
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.
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.
To 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.
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.
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.
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.
If 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
Hearse or other transportation costs
Casket or alternative container
Burial or cremation
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.
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.
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: 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.
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.
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: 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.
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.