Wrongful Death

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:

Intense Questioning

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.

Intense Anger

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

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.

Legal Matters

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.

Negligence

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.

Damages

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.

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.

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.

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
• 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.