Where do I go from here? Moving on after a loved one dies due to someone else’s negligence

Psychologists argue that the death of a loved one is probably one of the single most traumatizing things we as human beings can experience. All deaths as a result of accidents are a tragedy, losing a loved one due to another’s negligence can intensify the blow and leave you mentally and financially drained.

 

Oftentimes having to deal with medical expenses and burial expenses, while being forced to continue your life without your family member can leave you devastated. That’s what the attorney’s here at Kervin Law are ready to act as legal council and confidants during this difficult time.

 

Our attorneys understand your need to move forward with your life and we are here to help you. The attorneys at Kervin Law are here to support you in your time of need and offer you legal services that may help you financially in your time of need. There are two types of actions that we can file when you lose a loved one due to the negligence of another. The attorneys of Kervin Law can either file a wrongful death action or a survival action to help support you in your time of need.

 

History

One of the first recorded cases that shows the courts of Louisiana considering what we would know call wrongful death damages is seen in Hubgh v. New Orleans & Carrollton R.R., 6 La. Ann. 495, 496, reh’g denied, 6 La. Ann. 498 (1851).  This case is often seen to be the beginning of a long and confusing history of wrongful death claims, with the court initially refusing to recognize such a cause of action.  In 1884 the Louisiana Legislature recognized the right to wrongful death actions. It wasn’t until 1986 that what we now know as wrongful death and survival actions was officially codified in article 2315 of the Louisiana Code of Civil Procedure.

 

First: Is this a wrongful death case or a survival action?

 

A simple explanation of the difference between wrongful death and survival action:

 

  • A wrongful death action exists where the deceased person has the claim vicariously through his heirs — this means this claim covers pain and suffering, medical costs, lost wages, etc.
  • The survival action is the heir’s own personal damages for losing the loved one — mental anguish, grief, loss of financial support, etc.

 

The lawyers of Kervin Law will work to understand your needs and determine what action(s) should be filed according to the facts of your case. The attorneys at Kervin Law are here to access your claim and determine the fastest and most effective way to help your family.

 

Wrongful Death

 

Wrongful death law in Louisiana is oftentimes challenging and the procedure can be seen as counterintuitive.  The attorney’s at Kervin Law are here to act as guides and councilors to help you determine what is the best course of action for your case.

 

When do wrongful death actions arise?

In Louisiana wrongful death actions may arise out of a variety of scenarios including, but not limited to:

 

  • Defective Products
  • Offshore accidents
  • Assault/Battery
  • 18-wheeler accidents
  • Car/light Truck collisions
  • Construction Work Accident
  • Medical Malpractice
  • Prescription drug abuse
  • Nursing home abuse
  • Airplane crashes
  • Deficient security

 

The Law on wrongful death actions: who may recover damages

 

According to the text of the Louisiana Civil Code (Article 2315.2) wrongful death occurs  “ If a person dies due to the fault of another.” The text of the civil code specifically states who may bring a suit in the case of a wrongful death action. People who can recover from wrongful death are different from named beneficiaries on life insurance policies. In Louisiana there is a hierarchy listing who can recover under wrongful death and under what circumstances:

 

  • The first right of action goes to: the surviving spouse and child or children of the deceased, or either the spouse or the child or children.*
  • If there are no children the second right of action goes to: the surviving father and mother of the deceased, or either of them.
  • If there are no children and the parents have pre-deceased the victims: the surviving brothers and sisters of the deceased, or any of them.
  • Lastly, The surviving grandfathers and grandmothers of the deceased, or any of them.

 

Your claim must be filed one year from the death of the deceased to take advantage of a wrongful death action.  It is important that you contact the lawyers of Kervin Law as soon as possible in order to get your claim filed within this time period. The lawyers of Kervin Law are skilled in the area of wrongful death but your claim must be filed within the one year period.

 

*The words “child”, “brother”, “sister”, “father”, “mother”, “grandfather”, and “grandmother” include a child, brother, sister, father, mother, grandfather, and grandmother by adoption, respectively.

 

The nuts and bolts of a wrongful death claim

Wrongful death claims seek reimbursement for the loss of support (financial loss), affection, love, and companionship of the victim.  Sometimes you may even be able to recover the costs for medical bills and funeral expenses.

 

For your wrongful death claim to be successful our firm will help you develop two things:

  • Prove the elements of negligence exist for the actions of the responsible party (or parties)
  • Showing clear loss from the parties under the action.

 

The experienced attorneys of Kervin Law will prepare your case from start to finish by examining all evidence, possible sources of liability, and carefully collecting documentation of your loss.

 

Oftentimes the reason why a loved one dies is very clear. In other cases there are several possible explanations for death, and any one or multiple could have been the cause of your loss. It is important that if the deceased person’s physician recommends an autopsy to have one done. Always have an autopsy done when an accident is involved in the death of a loved one.

 

Damages from Wrongful Death

 

Damages for wrongful death actions may include measurable losses that are both economic and non-economic expenses including:

 

  • Lost wages
  • Pain and suffering
  • Burial expenses
  • The value of lost services within the household (ex: cost the person would have contributed to a child’s education)
  • Medical bills
  • Martial anguish and suffering

 

Sample Wrongful Death Verdicts

 

The monetary amount of damages received from wrongful death actions is varied but over the past decade the amount awarded for wrongful death damages has increased tremendously. Because the Louisiana Code of Civil Procedure does not refer to a specific amount of damages allotted the court reads that as there is no specific limit to the amount of damages that may be awarded. The following are some possible verdicts wrongful death cases. Keep in mind that no two cases are alike; these are verdicts from other cases. Our attorneys will work hard to try to get you the settlement you deserve.

 

$2,500,000

A man was exposed to asbestos and died five years after he was diagnosed with asbestos poisoning. His wife and children were awarded general damages as a result of their suit. Abram v. EPEC Oil Co., 936 So.2d 209.

 

$225,000

A man was involved in a horrific car accident and sustained injuries that lead to eventual multiple organ failure. The man also contracted hepatitis C and eventually died 6 years later. His son and daughter received wrongful death damages. Begnaud v. Department of Transp. & Dev., 679 So.2d 113.

 

$530,000

During a high school graduation party a man was shot and killed.  The wife and children of the victim recovered damages for mental anguish in regard to death, wrongful death, and survival action. Brown v. Ascension Parish, 887 So.2d 39.

 

$500,000

Family files wrongful death and medical malpractice suit after son dies of meningitis. Brown v. Eppinette, 833 So.2d 1268.

 

$425,000

A sheriff’s deputy in the parish went on a crime spree and the plaintiff’s wife was one of the victims. Louviere v. Louviere, 839 So.2d 57, 2001‑0089 La.App. 1 Cir. 6/5/02, (La.App. 1 Cir. 2002).

 

$400,000

The victim was an employee of a railroad company killed in the course of his duties. On appeal the court reduced the initial award of $500,000 per child to $400,000 per child. Dunn v. Consolidated Rail Corp., 890 F.Supp.1262 (M. D. La. 1995).

 

$1,000,000

Wife loses husband after 45 years of marriage.  Roberts v. Owens-Corning Fiberglas Corp, 2004 WL 691576, 2003-0248 La.App. 1 Cir. 4/2/04, (La.App. 1 Cir. 2004).

 

$900,000

Man killed after an explosion on the job. Wife received wrongful death damages.  Bergeron v. Blake Drilling & Workover Company, Inc., 599 So.2d 827 (La.App. 1 Cir.1992).

 

For more sample verdicts visit legalclimate.com

 

Survival Action

 

When do survival actions arise?

A survival action allows for a specific class of people to recover for the damages the victim sustained. In Louisiana, survival actions include the deceased’s right to recover damages for pain and suffering, if pain and suffering can be proved, mental anguish, grief related to their personal loss that they would have recovered had they lived. Also, there is a one year prescriptive period to recover damages for injuries sustained by a deceased person prior to their death.

 

  • Recover damages for pain and suffering
  • Medical bills

 

The law on survival actions: who may recover

According to the Louisiana Code of Civil Procedure (Article 2315.1) A survival action exists if a person who has been injured by an offense or dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased in favor of the following people:

 

  • The first right of action goes to: the surviving spouse and child or children of the deceased, or either the spouse or the child or children.*
  • If there are no children the second right of action goes to: the surviving father and mother of the deceased, or either of them.
  • If there are no children and the parents have pre-deceased the victims: the surviving brothers and sisters of the deceased, or any of them.
  • Lastly, The surviving grandfathers and grandmothers of the deceased, or any of them.

 

In addition, the right to recover all damages for injury to the deceased, his property or otherwise, caused by the offense or quasi offense, may be urged by the deceased’s succession representative when there is no other person.

 

  1. The right of action granted under this Article is heritable, but the inheritance of it neither interrupts nor prolongs the prescriptive period defined in this Article.

 

*As used in this Article, the words “child”, “brother”, “sister”, “father”, “mother”, “grandfather”, and “grandmother” include a child, brother, sister, father, mother, grandfather, and grandmother by adoption, respectively.

 

Damages from survival actions

Damages from survival actions are varied depending on all factors involved.

 

$83,000

During a high school graduation party a man was shot and killed.  The family was awarded survival damages in addition to wrongful death. Brown v. Ascension Parish, 887 So.2d 39

 

$20,000

Parents of a child saw the child get killed after being hit by a car while crossing the street to meet the school bus.  Craighead v. Preferred Risk Mutual Insurance Co. 769 So.2d 112

 

$75,000

Widow brought suit on behalf of her children when attorney allowed husband’s wrongful death claim to prescribe. Guidry v. Coregis Insurance Co., 896 So.2d 164

 

$150,000

A woman was hit in a head on collision by another car driven by an employee of the Louisiana State University Health Sciences Center. The Women’s husband was killed in the collision. Illes v. Ogden, 2010 So.2d.

 

$500,000

Man was exposed to asbestos and sustained lung cancer as a result. Palermo v. Port of New Orleans, 933 So.2d 168

 

$250,000

Collision between a railroad train and a car. The award was given even though there was no expert testimony involved, a witness testified to the victim’s pain. Long v. State, through the Dept. of Trans. and Dev.,862 So.2d 149, 37,422 La. App. 2 Cir. 11/24/03, (La. App. 2 Cir.2003);

 

$400,000

A man died after being shot by robbers, he lived for 9 hours. Pinsonneault v. Merchants & Farmers Bank & Trust , Co., 738 So.2d 172, 99‑12 La. App. 3 Cir. 7/21/99, (La. App. 3 Cir. 1999) (reversed on other grounds).

 

For more sample verdicts visit legalclimate.com