After a fatal accident, a family is left grieving the loss of a loved one. The surviving family may be thinking of all the things that could have prevented the accident. However, it can be much more painful if the accident was caused by someone else, like someone who was texting and driving and caused a car accident.
There is a way for the family members to hold a negligent party accountable for their actions. In Colorado, families can file a wrongful death lawsuit against the negligent parties. The family can sue for damages caused by the death of the individual. While no amount of money can replace a person, a financial award can help the family deal with the financial pressures of losing someone and make sure the person who caused the accident is held responsible.
The attorneys at accidentdenver.com will give your family answers after a fatal accident. We will be able to investigate the case, handle the insurance company, and fight to get you compensation after a fatal accident. Contact us today for a free consultation.
Wrongful Death Claims in Denver
A wrongful death claim is a cause of action that allows certain family members to file a lawsuit against negligent parties for causing the death of another. Wrongful death lawsuits seek damages related to the losses to the family, including financial costs and non-economic damages like loss of support.
Under Colorado Revised Statute § 13-21-202: “When the death of a person is caused by a wrongful act, neglect, or default of another, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable, if death had not ensued, shall be liable in an action for damages notwithstanding the death of the party injured.”
Historically, before there were wrongful death claims, an injury victim could seek damages from the negligent parties who caused the accident, but if the injury victim died, then there would be no recourse against the negligent parties. Wrongful death lawsuits provided a way for surviving family members to seek damages from the negligent parties who caused the death of a loved one.
How Long Do I Have to File a Wrongful Death Claim in Colorado?
There is a limited amount of time to file a civil lawsuit for injury accidents and wrongful death claims. In most cases, a wrongful death claim has to be filed within two (2) years of death.
For example, Michael is involved in an accident with a drunk driver on July 4, 2018. Michael is critically injured and hospitalized for his injuries. Despite medical treatment, Michael passes away on July 6, 2018. Michael's family members are outraged and want to file a lawsuit against the drunk driver. In this case, the family would generally have until July 5, 2020, to file a wrongful death lawsuit against the driver and any other parties.
Statute of Limitations for Wrongful Death is Different Than Personal Injury
If the individual was injured but did not die, then the time limit to file a personal injury claim involving an automobile accident is longer than for wrongful death. The statute of limitations for auto accident personal injury claims is generally three (3) years from the date of the accident.
As in the above example, Michael is involved in an accident with a drunk driver on July 4, 2018. Michael is injured and hospitalized for his injuries but eventually recovers. Michael wants to file a lawsuit against the drunk driver. In this case, Michael would generally have until July 3, 2021, to file a personal injury lawsuit against the driver and any other parties.
Filing a Wrongful Death Claims in Colorado
Only certain parties can file a wrongful death claim in Colorado at certain times. In the first year after the death, designated parties can file a claim. In the second year after the death, the right to file a wrongful death claim expands.
In the first year after the person's death, only the following can file a wrongful death lawsuit as the plaintiff:
- Spouse of the deceased,
- Heirs of the deceased (upon the written election of the spouse),
- Heirs of the deceased (if there is no surviving spouse), or
- A designated beneficiary, if there is one (where there is no surviving spouse).
In the second year after the person's death, only the following can file a wrongful death lawsuit as the plaintiff:
- Spouse of the deceased,
- Heirs of the deceased, or
- A designated beneficiary, if there is one.
With the time limit of only two years to file a wrongful death claim, the heirs or designated beneficiaries may have a small window of time to file a claim if the spouse does not file a wrongful death claim or provide a written election for the heirs to file a claim. Those not eligible to file a claim in the first year will have a one-year window to file the claim after the first year but before the end of two years.
If the deceased is an unmarried adult without descendants or a beneficiary, or if the deceased is a minor without descendants, the mother and father of the deceased can file a wrongful death claim.
Damages in a Wrongful Death Claim
Damages in a wrongful death claim are different than they are in a personal injury claim. Instead of the injury victim claiming damages, it is the family members claiming their own losses after the death of the victim. The damages can include any economic damages related to the death of the victim and any non-economic damages suffered by the family.
Economic Damages in a Colorado Wrongful Death Accident
Economic damages are generally those that cost the family or estate money after a fatal accident. This includes the costs directly related to the accident as well as future and continuing costs caused by the deceased no longer being alive or able to contribute to the family members. Economic damages in a wrongful death claim can include:
- Medical bills,
- Property damage,
- Funeral expenses,
- Burial costs,
- Loss of the decedent's services,
- Loss of the decedent's income, and
- Loss of the benefits.
For example, if a young parent was working and providing for the family, that family may struggle without the parent's income. A wrongful death claim would allow the family to seek compensation for the loss of income and services the parent would have provided to the family if the accident had not happened.
Non-Economic Damages in a Wrongful Death Claim
Non-economic damages can be more difficult to put an exact number on. This includes losses like pain and suffering, loss of support, and loss of consortium. For example, if a parent is killed in an accident, that parent would no longer be able to help raise the child or provide guidance and support. A spouse to the deceased would no longer have the affection and relationship with the deceased. These are losses to the family caused by the loss of a loved one that should be compensated after an accident.
There may be a cap on non-economic damages in a wrongful death claim. Generally, the maximum damages for pain and suffering is $250,000, which is adjusted for inflation. For fatal accidents occurring after January 1, 2008, the cap amounts to $468,010.
Where there is “clear and convincing evidence,” that a higher amount of pain and suffering damages is warranted, the maximum amount is $500,000, adjusted for inflation. For accidents occurring after January 1, 2008, the clear and convincing cap amounts to $936,030.
Is Wrongful Death the Same as a Survival Action Claim?
A survival action claim is similar to a wrongful death claim but instead claims damages for the deceased's estate that the victim suffered before death. This provides compensation for the damages caused by the accident that the victim suffered before the victim died.
If the deceased died immediately after the accident, there may be no damages for the survival claim. Generally, survival actions apply where the victim survived for a period of time (even a short period) before dying from the accident. Damages in a survival action include:
- Funeral expenses,
- Automobile damages in a car accident,
- Medical expenses for the time between the accident and death,
- Any lost wages for the time between the accident and death.
Additionally, in a survival action, a personal representative files the lawsuit. A personal representative can be named in a will or trust or can be appointed by the Colorado probate court. Both a wrongful death claim and a survival action can be filed after a fatal accident.
Investigating Wrongful Death Accidents
Unfortunately, many family members do not think about all the negligent parties in a deadly accident. They may think there is no one to blame and it was all a tragic accident. However, when someone negligently caused the accident, filing a wrongful death claim will not only provide compensation, it may also help prevent similar accidents from happening in the future.
When investigating a fatal car accident, your accident injury attorney will be able to review all records, look at any video, audio, or photo footage, investigate prior accidents involving the same parties or the same location, and look for any evidence of possible negligence.
Increasingly, the plaintiffs can investigate phone records to look at what the defendant was doing at the time of the accident. For example, the plaintiff may have been sending text messages, live streaming video, or even watching a movie on their phone. This evidence can be used to show the driver was distracted at the time of the accident.
Phone records and social media posts can also show what the driver was doing shortly before the accident. For example, the defendant may have been posting images of drinking beer after beer at a Denver brewery or texting a friend about trying some edibles from a recreational dispensary. This evidence can be used to dispute claims that the defendant had not been drinking or under the influence of drugs when there is evidence the driver may have been impaired at the time of the accident.
Who is Responsible in a Fatal Accident?
Negligence in a car accident often involves parties breaching the duty of care to others on the road. This may involve violating a traffic law, like speeding, running a red light, or texting and driving. However, there may be other negligent parties in addition to any drivers. Negligence in a car accident can also involve:
- Defective vehicles,
- Defective auto parts,
- Hazardous road conditions,
- Negligent pedestrians,
- Negligent cyclists,
- Negligent bus drivers,
- Negligent truck drivers,
- Lack of road maintenance,
- People serving alcohol to impaired drivers, or
- Vehicle owners allowing unlicensed drivers access to a vehicle.
When more than one party shared in causing the accident, the plaintiff may be able to recover damages from any of the parties responsible, increasing the chance of getting full compensation after the accident. Talk to your Denver auto accident injury attorneys about any questions you have after a loved one was involved in an accident.
Denver Auto Accident Injury Lawyers
The attorneys at accidentdenver.com have successfully represented families who lost a loved one in a Denver auto accident. Our attorneys will handle your claim so you can make sure those responsible for the tragic accident will be held accountable for their actions. Contact us today for a free consultation.