The person responsible for the accident may be liable for the victim’s wrongful death.
When an auto accident results in death, the person responsible for the accident may be liable for the victim’s wrongful death. North Carolina law recognizes a cause of action for “wrongful death” when a death is caused by the negligence, wrongful act, or fault of another.[1] Even tough the victim is no longer alive, the law allows for his or her family members to seek monetary compensation for the loss of their loved one.
[1] N.C. Gen. Stat. § 28A-18-2(a).
The types of damages available in a wrongful death lawsuit are defined by statute, and include the following:
- medical expenses incident to the injury resulting in death (e.g., emergency care, surgery, medication, hospitalization);
- the deceased person’s pain and suffering;
- reasonable funeral and burial expenses; and
- the “present monetary value of the decedent” to his or her next-of-kin, such as,
- loss of the deceased person’s income;
- loss of the deceased person’s services, protection, care and assistance; and
- loss of the deceased person’s society, companionship, comfort, guidance, and advice.[2]
Punitive damages may also be appropriate if there is clear and convincing evidence of the defendant’s malice, or willful or wanton conduct.
Fortunately, any amounts recovered in a wrongful death lawsuit pass outside of the estate, meaning that the proceeds are protected from the estate’s creditors.[3]
[2] N.C. Gen. Stat. § 28A-18-2(b).
[3] N.C. Gen. Stat. § 28A-18-2(a).
The proceeds from a wrongful death action are distributed according to North Carolina’s Intestate Succession Act which proscribes the lines of inheritance when a person dies without a will.[4] Depending on the circumstance, determining the proper beneficiaries can be a very complex undertaking. Common scenarios include the following:
[4] N.C. Gen. Stat. § 28A-18-2(a); N.C. Gen. Stat. §§ 29-1 to 29-30.
Surviving spouse, no surviving children, no surviving parents
Surviving spouse, one surviving child
Surviving spouse, two or more surviving children
Surviving spouse, no surviving children or grandchildren, and surviving parent(s)
Surviving children or grandchildren, no surviving spouse
Surviving parent(s), no surviving spouse
All to surviving spouse
First $30,000 to surviving spouse with remainder split equally between surviving spouse and surviving child
First $30,000 to surviving spouse with 1/3 remainder to surviving spouse and 2/3 remainder split equally among the surviving children
First $50,000 to surviving spouse with remainder split equally between surviving spouse and surviving parent(s)
All divided equally among the children (only child receives all proceeds)
All to parent(s) (two surviving parents split proceeds equally)
The only person who can bring a wrongful death claim is the “personal representative” of the deceased.[5] The personal representative is the executor named in the deceased person’s will, or, if the deceased died without a will, the administrator of the deceased’s estate. The personal representative sues in his or her representative capacity on behalf of the wrongful death beneficiaries.
[5] N.C. Gen. Stat. § 28A-18-2(a).
How does a lawsuit for a fatal car accident relate to a criminal case?
Often, a fatal car accident may result in both criminal charges and civil litigation, but these are two entirely separate actions. In a criminal case, the government prosecutes the defendant for breaking the law, and the punishment may include fines or imprisonment. In a civil case, the victim, or the victim’s representative, sues the defendant, usually for monetary compensation, to make up for their loss. Because they are separate actions based on separate legal standards, each case proceeds independently. However, it is not unusual for a defendant to ask the court to stay (or put on hold) the civil lawsuit until the criminal charges are resolved.
Why do I need an attorney?
Civil litigation can be nearly impossible for a layperson to navigate alone, and this is especially true in wrongful death cases which present unique procedural challenges. The right to sue for wrongful death is entirely statutory, and any lawsuits seeking such recovery must comply with the statutes. Even if a case is never filed, insurance companies may pressure you and your family to accept less than you deserve. An experienced attorney can guide you through the complex process and help you secure the maximum amount of compensation for your family’s loss. While no amount of money can make up for a life lost too soon, the right attorney can guide you through the legal process and will deal with the insurance companies and courts to secure your family’s rights.
What are some examples of wrongful conduct?
With a car accident, the person at fault may have been negligent in more than one way. Drivers have a duty to use “ordinary care” in operating their vehicles, including the duty to “keep a reasonable lookout” and to “keep their vehicle under proper control.” Additionally, there are numerous safety statutes regarding motor vehicles, and violations of these statutes are negligence in and of themselves. Such violations could be exceeding the posted speed limit, running a stop sign, or running a red light.
What if the defendant is one of the wrongful death beneficiaries?
If a fatal auto accident was caused by one of the wrongful death beneficiaries, a claim can still be made on behalf of the other beneficiaries. For example, assume Adam and Brittany are a married couple with 2 children, Carla and Doug. Adam’s wrongful death beneficiaries are his wife and children – Brittany, Carla, and Doug. If Adam were to die in an automobile accident caused by Tom’s negligence, Brittany and Carla could bring a wrongful death case against Tom. Tom, however, is not entitled to share in the proceeds because he cannot profit from his own negligence.[1]
[1] See Carver v. Carver, 310 N.C. 663, 675, 314 S.E.2d 739, 743 (1984).
What is a survival action?
A survival action encompasses claims brought after a person’s death for non-fatal injuries the person sustained before death.[1] Survival actions are part of the deceased’s estate and they are different from wrongful death cases. If the injuries ultimately result in death, the survival claims become moot as those damages are recoverable under the wrongful death statute.[2] Nevertheless, a lawsuit may pursue both survival and wrongful death claims, especially when it is disputed whether the wrongful conduct was the proximate cause of death.
[1] N.C. Gen. Stat. § 28A-18-1.
[2] State Auto Ins. Co. v. Blind, 185 N.C. App. 707, 650 S.E.2d 25 (2007)