Wrongful death claims are very different from injury cases. Wrongful death cases are very different from lawsuit to recover for property damage, lost wages, hospital bills, and other types of claims, with which you may be familiar. It is understandable to think a death claim is just a larger version of other types of injury cases. They are not. Please allow us to explain.
Wrongful death – In short
Wrongful death claims are filed to recover compensation for a deceased loved one. These cases arise when a person dies as a result of the negligence of another person or entity.
Wrongful death claims are brought by the surviving members of the deceased victim’s immediate family. Missouri law requires wrongful death clams to be filed in State Court. This means a Kansas City wrongful death claim will be in the Circuit Court of Cass County at Harrisonville or the Circuit Court of Johnson County at Warrensburg. Cases where the victim or the person who caused the death live in Kansas City should be brought in the Circuit Court of Jackson County at Independence.
Wrongful Death Versus Injury Claims
The History
Injury claims originate from “the common law.” This is the law, originating from British court law, adopted by America when it was founded. Injury claims evolved over hundreds of years and tens of thousands of injury cases. The degrees and types of damages, for which you could recover money, evolved. The skills and techniques accident lawyers used to recover money for their clients was honed to a sharp science.
There was no “claim” or recognizable “lawsuit” at common law for death. Caesar once boasted mortui non postulant … “dead men don’t sue.” When my father Joe Hamilton was a young lawyer, the joke was “if you hit someone with your car, and don’t kill them; back up and finish.” Such heartless expressions exposed the unjust, cruel nature of our traditional laws. There was “just” compensation for injury, but no justice for the families of those killed.
In 1855, Missouri made a step in the right direction to alleviate the injustice imposed upon families of those wrongfully killed by passing the wrongful death statute. This is not a mere difference in form. Wrongful death claims are a real, substantial difference. Wrongful death claims do not come from centuries of judges carefully working out details of claims to produce a fair result. Rather, wrongful death claims originate from factors recently passed by State Legislators. Justice is more elusive. The paths to achieving wrongful death justice require specialized skill. Those paths are not intuitive; wrongful death justice requires wrongful death experience.
Benefits we provide:
- Payment of outstanding bills and debts
- Wrapping up the estate and other legal issues
- Payment of funeral expenses
- Providing for the future of children who are minors
- Future living expenses for the surviving spouse and dependents
- You’ll have our 42+ years of legal experience on your side.
- NO FEE UNLESS WE COLLECT FOR YOU
Wrongful death claims often occur after auto accidents, railroad collisions, crossing accidents, exposure to hazardous chemicals, medical malpractice, bicycle accidents, and defective products. Call us with your questions and let us help you and your family.
Missouri’s Wrongful Death Statute:
Action for wrongful death – who may sue – limitation R.S.Mo. 537.080.
- 1. Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstance which, if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party 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 person injured, which damages may be sued for:
- By the spouse or children or the surviving lineal descendants of any deceased children, natural or adopted, legitimate or illegitimate, or by the father or mother of the deceased, natural or adoptive;
- If there be no persons in class (1) entitled to bring the action, then by the brother or sister of the deceased, or their descendants, who can establish his or her right to those damages set out in section 537.090 because of the death;
- If there be no persons in class (1) or (2) entitled to bring the action, then by a plaintiff ad litem. Such plaintiff ad litem shall be appointed by the court having jurisdiction over the action for damages provided in this section upon application of some person entitled to share in the proceeds of such action. Such plaintiff ad litem shall be some suitable person competent to prosecute such action and whose appointment is requested on behalf of those persons entitled to share in the proceeds of such action. Such court may, in its discretion, require that such plaintiff ad litem give bond for the faithful performance of his duties.
- Only one action may be brought under this section against any one defendant for the death of any one person.
- (RSMo 1939 §§ 3652, 3653, A.L. 1955 p. 778 § 537.070, A.L. 1967 p. 663, A.L. 1979 S.B. 368, A.L. 1991 H.B. 236)Prior revisions: 1929 §§ 3262, 3263; 1919 §§ 4217, 4218; 1909 §§ 5425, 5426
Note several important aspects of this statute.
- There is a “class” of persons, not a single claimant.
- The wrongful death action is created by statute, not courts over time.
- All wrongful death lawsuits require court approval, even the settlements.
- The Court, not the parties, approves how the wrongful death money will be divided.
Wrongful Death Time Limits are Different
Injury cases are usually covered by claims under negligence, negligence per se, and similar accusations. These claim must be filed within five years of the event. Contract claims have ten years to file their claims. Wrongful death claims have a relatively short period, three years in which to file. Three years may seem like a long time; however, when looking a dealing with death, distributing a decedent’s estate, discovering and investigating the cause of a death, and getting the family unified to bring the claim; three years will require diligence.
Wrongful Death Defenses:
There is a statute as to wrongful death defenses. It is as follows:
Defenses to wrongful death action.
537.085. On the trial of such action to recover damages for causing death, the defendant may plead and prove as a defense any defense which the defendant would have had against the deceased in an action based upon the same act, conduct, occurrence, transaction, or circumstance which caused the death of the deceased, and which action for damages the deceased would have been entitled to bring had death not ensued.
(L. 1955 p. 778 § 537.090, A.L. 1979 S.B. 368)
Wrongful Death Defense Analysis
This statute may seem boring at first, but it is not. Remember, the victim has died. Therefore, he or she is not around to respond to allegations that they are at fault (even partly) for the accident. The wrongful death lawsuits best witness is not around, like injury cases.
Next, there is a specific Missouri law on the division of wrongful death money after judgment at trial. It is as follows:
What is it worth? Wrongful Death Money Damages
Damages to be determined by jury — factors to be considered.
Basically, the family members must focus on a different set of factors to recover for the wrongful death of a loved one. These damage factors include:
- Loss of services
- Loss of companionship
- Loss of comfort
- Loss of instruction
- Loss of guidance
- Loss of counsel
- Loss of training
- Loss of support
- Funeral bills
- Medical bills
- Anticipated wages and benefits (if they had lived)
- The pain and suffering just prior to death
- The value of child care (presumed to be 110% of Missouri’s average weekly wage)
- The value of elder care
You are thinking right now, “what does all that mean?” It is confusing as a practical matter. When it comes to the question “Who is at fault?” This is proved in the same manner as an injury case. When is comes to the question, “What did the other person do wrong?” This is also proved similar to an injury accident case. However, damages are different.
For this reason, wrongful death claims require the kansas city wrongful death attorney to investigate factors like:
- The decedent’s health
- Life Expectancy
- Talents
- Habits
- Age
- Earning capacity (future)
- Character
For the death of a teenager, the income of the parents becomes relevant. How the person dies becomes relevant. Some cases may seek additional money damages for “aggravating circumstances.” Such exemplary damage claims are closely tied to the manner in which one seeks punitive damages.
What? Is there a Cap on Wrongful Death Compensation?
Here is another example of the unique nature of achieving just compensation for the wrongful death of a loved one. Namely, one must navigate statutory caps on the total amount of money one can recover. Here, the type of damages of your particular case comes in. Also, how the person died becomes important.
For example, there is generally no cap on the amount of economic damages one may recover for wrongful death(thin out of pocket costs). However, the Missouri Supreme Court has ruled that since wrongful death claims were created by statute, and not a result of traditional judge common law passed down by Britain, then the legislature has the power to limit a family’s recovery. Yes, your legislature has voted to make such limitations.
For example, Missouri has passed laws limited non-economic damages for medical negligence cases (think $700,000 maximum). Damages for “grief and bereavement by reason of death” have been eliminated.
Missouri Wrongful Death Damages Statute
537.090. In every action brought under section 537.080, the trier of the facts may give to the party or parties entitled thereto such damages as the trier of the facts may deem fair and just for the death and loss thus occasioned, having regard to the pecuniary losses suffered by reason of the death, funeral expenses, and the reasonable value of the services, consortium, companionship, comfort, instruction, guidance, counsel, training, and support of which those on whose behalf suit may be brought have been deprived by reason of such death and without limiting such damages to those which would be sustained prior to attaining the age of majority by the deceased or by the person suffering any such loss. In addition, the trier of the facts may award such damages as the deceased may have suffered between the time of injury and the time of death and for the recovery of which the deceased might have maintained an action had death not ensued. The mitigating or aggravating circumstances attending the death may be considered by the trier of the facts, but damages for grief and bereavement by reason of the death shall not be recoverable. If the deceased was not employed full time and was at least fifty percent responsible for the care of one or more minors or disabled persons, or persons over sixty-five years of age, there shall be a rebuttable presumption that the value of the care provided, regardless of the number of persons cared for, is equal to one hundred and ten percent of the state average weekly wage, as computed under section 287.250. If the deceased is under the age of eighteen, there shall be a rebuttable presumption that the annual pecuniary losses suffered by reason of the death shall be calculated based on the annual income of the deceased’s parents, provided that if the deceased has only one parent earning income, then the calculation shall be based on such income, but if the deceased had two parents earning income, then the calculation shall be based on the average of the two incomes.
(RSMo 1939 § 3654, A.L. 1945 p. 846, A.L. 1955 p. 778 § 537.080, A.L. 1967 p. 663, A.L. 1973 H.B. 173, A.L. 1979 S.B. 368, A.L. 2005 H.B. 393)
Prior revisions: 1929 § 3264; 1919 § 4219; 1909 § 5427
CROSS REFERENCE:
Applicability of statute changes to cases filed after August 28, 2005, 538.305
This statute makes wrongful death cases different than personal injury cases. Future earnings, future pain and suffering, disability, limitations, future medical case; so many of the typical aspects of case value with personal injury lawsuits do not apply to wrongful death cases. This is why it is critical to hire a law firm that specializes in wrongful death cases. It is not just about knowing or learning about the differences. As a result, it is necessary for the family’s wrongful death attorney to have mastered how to handle case.
Why Wrongful Death Cases Cost More to Bring
More expert are needed in wrongful death cases. Namely, one type of expert is needed to quantify in money terms the value of the various elements of damages, listed above. Secondly, an economist is frequently employed to bring to a present value the amount of compensation the jury should award.
Experts cost money. It is important to know the best experts to use for a wrongful death case. It is also important to know the best way to present such experts.
Frequently Asked Kansas City Wrongful Death Case Questions
It is typical for the parties in any case to give their deposition. The injured victim’s deposition will be in our law office. A court reporter will be there to take down the testimony word-for-word.
One of our personal injury attorneys familiar with your case will be there, right by your side, to answer your questions, to object to any improper questions, and to help your case.
Depositions are also taken in personal injury cases of various other witnesses and experts. These people include witnesses to the incident, your physician, and the defendant themselves.
One to two years is typical for Lee’s Summit or Kansas City lawsuits. The specific period of time between the filing of your injury lawsuit and the trial will depend on how busy your specific court is, and how much litigation occurs.
Yes. We will write you a letter detailing every offer that is made in your case. We will give you our experienced opinion regarding whether the offer should be accepted, rejected and the details of any counter-offer.
We will have detailed meetings before your case is settled. Any questions you may have will be answered in advance. We are here to help you.
Missouri generally and Kansas City specifically releases detailed information on each and every jury verdict that occurs here. In our nearly half a century of experience, we have never heard of a property owner having to pay millions of dollars for a slip and fall on his property.
We have never heard of a single property owner that lost his house because of a lawsuit. Indeed, there are laws that protect against this.
Personal injury claims made by lawyers nearly always go after only the property insurance. This means that the property owner does not pay a single dime out-of-pocket. The stories to the contrary seem to be Urban Legends.
It is true, however, that juries are more conservative now. This is in part to the types of stories detailed above. Because of this, choosing the right personal injury attorney for a personal injury case has become paramount.
Probably not. Personal injury cases generally settle before trial. Sadly, injury cases that arise from dangerous property conditions go to trial more than any other type of lawsuit (except medical malpractice). This is because juries are generally skeptical of property injury cases.
The news is constantly making villains of personal injury attorneys. Worse, the media is critical of the victims. While this is wrong, it makes for difficult work for the attorney and when an insurance company believes the attorney making the claim is inexperienced, or will not succeed. A jury trial in your personal injury case is more likely. Still, on the whole, most cases settle.
Yes. Your injury case can be settled through negotiations with the property owner or the insurance company. Our injury law firm has an excellent reputation at pre-suit negotiation tactics and follow through.
Remember, in many cases, it is not possible to settle a personal injury claim prior to a lawsuit for the money you want. That is simply a fact of the industry. Insurance companies know a certain number of people making an injury claim will drop out over time. People die, families move, people get distracted by the multitude of other issues life brings up.
For this reason, our law firm has witnessed many injury defense insurance claims departments and personal injury defense lawyers that regularly stall for time. One of these tactics is refusing to settle for a reasonable amount without a lawsuit on file. Insisting on settling your personal injury case before the filing of the lawsuit may be at the cost of full recovery to you.
That depends. You really need to get the evidence together and talk with one of our injury attorneys to get a clear estimate.
Personal injury cases that arise from dangerous property are more difficult and are more of an area of specialty than nearly any other area of personal injury law. This is because people are very skeptical of these types of cases.
Dangerous property cases require the lawyer to take extra care in establishing fault. The injury attorney further needs to differentiate the case from the juror’s own experiences. Jury members will be nervous that the same type of case could happen to them, or a relative, friend, or acquaintance. It is especially important for the injury lawyer to be an expert in overcoming these obstacles.
The only way to accurately evaluate you case to determine its value is to:
- Pick an attorney with extensive and specific experience and success in dangerous property personal injury work,
- Gather the evidence regarding who is at fault, why, and your damages, and
- Sit down and discuss the injury case in detail with that lawyer. Obviously, the better information and evidence that is available, the more accurate the estimate the attorney can give.
Yes. It is expensive to bring personal injury cases where the victim is injured on dangerous property. Medical bills and medical records cost thousands of dollars. Depositions cost hundreds to thousands of dollars, depending on the type of testimony. Exhibits are expensive and necessary.
Experts can charge retainers over ten thousand dollars each. Dangerous property cases involving personal injury are expensive.
Our law firm pays for the up-front out-of-pocket expenses. This is one aspect that sets our injury law firm apart from other lawyers. We have the capital and regularly pay for these expenses. We don’t require our clients to pay up front costs. We don’t skimp to save money.
The difference between getting full reimbursement for the personal injury client and losing is small. Cutting corners kills lawsuits. Paying for the needed costs is key to best practice injury litigation.
No. Injury cases are handled by our law firm on a contingency fee basis. We only get paid if we succeed in getting you money. We only get paid at the end of the process. We front the money for your personal injury case in the meantime.
Our injury lawyers will visit the injury scene, gather the evidence, take photographs and video. We will pay to get your medical records and bills. You will not have to.
We will front the cost to hire experts in your case; you will not have to. We will pay for the trial exhibits up front. That way, your personal injury case will proceed on schedule, in the right way. You pay nothing unless we recover money for you and your family.
You don’t have to pay a personal injury property lawyer up front. Use your money for your own bills. Our law firm only gets paid if you get paid.
Cases that arise because property was unreasonably dangerous cause serious injury. It is normal to have orthopedic surgeon bills and medical costs from specialty doctors. It is normal to have large medical bills. This is why people look into hiring a personal injury attorney.
Use your money for your costs. Our injury law firm fronts the costs of the lawsuit for you. That way, if your Lee’s Summit medical bills need paid; you won’t have to worry about paying your lawyer first.
Choose the lawyer you like and have confidence in. Whether it is someone at our injury law firm or another attorney, it is your case, your life and you’ll have to like the result. It should be your choice.
Take your time, don’t be pressured by friends, relatives, or advertisements. You have the necessary experience to hire the right lawyer for you.
Here are a few tips that may help:
- Specific Experience in Personal Injury Property Cases: Many lawyers are competent in their area of practice and can “talk a great game,” but lack experience in the field. You will know the difference. Here is how to tell: A lawyer without actual experience will be unable to give you details on matters that experienced attorney know. Take the time; talk to who you are considering. Experience in personal injury cases is important for a lawyer because this is a technical area of the law.There are many ways to handle a case wrong. Just because most attorneys do it a certain way does not make it right. Remember, in a race, only one runner did it exactly right. The others did not win. Choose experience in personal injury cases specifically.
- Legal experience in Cass and Kansas City, Missouri courts: If you want to win an argument, there is no substitute for knowing your audience. In this regard, it is your local Judge.Most injury attorneys do not regularly appear in court. Most personal injury lawyers do not have extensive experience in trial. It is hard to know how to argue to a Judge or a jury in Cass or Kansas City, or Lee’s Summit without specific and extensive experience with our area.
- Look for Success: This will be easy to see. Remember, it is not about being shallow. Personal injury property cases are expensive. You will need an attorney who can afford to hire the right experts.You will need an injury attorney who will not skimp on taking a deposition that helps your case because of cost. These are subtle details that can make the difference between winning and losing.
- Choose who you personally have Confidence in: You have spent your life dealing with people, forming opinions about people, remembering how your trust was rewarded. Most people are good at evaluating people. Trust your own instincts; generally, your instincts are right.
That lawyer certainly can represent you in your personal injury claim. Whether using that other lawyer is wise is another matter. That depends upon the lawyer.
Experience: Personal injury cases, such as auto accidents take a great deal of experience to properly handle. You want to form an opinion regarding the injury attorney you select regarding whether he has the specific experience for your case.
Success: Cases involving slip and fall injuries are difficult. Some attorneys have great ability and win big awards; their clients are fully compensated. Other attorneys . . . have less success. Their clients have losses that are uncompensated.
Separate from hiring an attorney with personal injury experience, you’ll want to choose an attorney with a record of success.
Local knowledge: The most experienced attorney in the world is not the best choice if that lawyer doesn’t know “the lay of the land,” specifically Cass and Kansas City, Missouri.
Different Judges make different decisions (in otherwise the same situation) just because they are different people. Our lawyers have a great deal of knowledge and experience with local judges. We are “dialed in.” That will help in knowing how to argue your case. It gives us an advantage over attorneys from other areas.
Our injury lawyers grew up in, live in, and know the people of Cass and Jackson County. We know how those jurors behave, what they respond to, and what they do not respond to. Hiring the injury law firm that knows the local jury is an advantage you’ll want.
You’ll want to talk with one of our personal injury attorneys regarding what, if anything, may be missed. We have decades of experience in personal injury lawsuits. We anticipate costs that the insurance company wants to get out of reimbursing you for.
Our injury attorneys work to get you full payment for your losses. Few people, on their own, can achieve the full compensation that a professional lawyer can gain.
We are talking about:
- Future medical costs
- Future wage losses
- Property damages at full value
- Past medical bills
- Future medical treatment
- Future disability
- Future physical limitations
- Over the counter drug costs
- Compensation for the loss in quality of your life
The insurance company is not offering you an amount of money out of the kindness of its heart. In nearly all personal injury cases, parties represented by attorneys get more (even after attorney’s fees and costs) than they would get without an injury lawyer.
Peace of mind is important to many people. Victims don’t want to have to wonder whether they have been taken advantage of by an insurance company in a settlement. You want to know that your compensation amount is fair. Our personal injury lawyers will be straight with you; you’ll know.