Embarking on the path of a wrongful death claim is an emotional and legally intricate journey. Understanding the essential aspects of seeking compensation in wrongful death cases and the aftermath of a tragic loss is crucial. From understanding the eligibility criteria to navigating the intricate legal procedures, equip yourself with the knowledge necessary to pursue compensation for your loved one’s untimely passing.
Damages in a Wrongful Death Lawsuit
In both Missouri and Kansas, the wrongful death of an individual places at issue the damages suffered by the survivors. The survivors can also pursue the damages suffered by the decedent for the period of time between the onset of the fatal injury and death. In Missouri, the survivors can pursue this in their own name and prove the decedent’s “survival” damages as if the decedent were alive to pursue such remedies him/herself. In Kanas, only the estate of the decedent can pursue survival damages. As such, the court must appoint a representative of the estate to carry forward any claim for survival damages. The representative can recover pain and suffering of the decedent between the onset of injury and death. Though, only for “conscious” pain and suffering. If the decedent never regained consciousness after injury, then one cannot meet requirement of “conscious” pain and suffering. There are, however, anecdotal means to demonstrate that the decedent was aware and suffered. Such as the opening and closing of eyes, moans or other exclamations, responding to forms of stimuli, or grasping the hand of a loved one.
What types of compensation can be pursued in a wrongful death case?
Wrongful death lawsuits often involve unique damages that non-fatal injury accidents do not have. The damages are generally those suffered by the decedent’s survivors. Other damages include funeral expenses, last medical expenses, or a lifetime of a loss of relationship with the decedent. Statute §537.090 R.S.Mo also defines such damages. In Missouri, damages include the loss of the comfort, services, care, and support of the decedent. Kansas recognizes similar damages. Although, Kansas divides such losses into either “economic”, or “pecuniary” losses and “non-economic” or “non-pecuniary” damages.
- Non-pecuniary damages, which account for the loss of the decedent’s presence in the life of the individual(s) filing a wrongful death action. Things such as comfort, loss of familial relationship and affection, are examples of non-pecuniary damages.
- Pecuniary damages relate to a loss of money or something that can directly measure in money. Such as last medical expenses, funeral costs, or loss of financial support. Pecuniary damages can include the loss of the financial value of services the decedent provided to the family. For example, the value of household services such as repairs around the house.
Among the recoverable categories of damages for a Kansas wrongful death plaintiff are:
- Mental anguish
- Suffering or bereavement
- Loss of society, companionship, comfort or protection
- Loss of marital care, attention, advice or counsel
- Loss of filial care or attention
- Loss of parental care, training, guidance, or education
Generally, they ask juries to divide any damages awarded into the two general categories.
Is there a cap or limit on compensation for damages?
Missouri recognizes no limits on compensation for wrongful death, with the exception of death arising from medical negligence. In medical cases, the rules work similarly to the general rule in Kansas, which recognizes a $250,000 cap or limit on “non-pecuniary” damages arising from death. Courts have crafted ways that permit recovery for items of damage that do not otherwise seem to have direct economic value.
In the case of Wentling v. Medical Anesthesia Services, 701 P.2d 939 (Kan. 1985), the Supreme Court of Kansas analyzed the testimony offered by an expert economist. He opined that certain elements of damages recognized by the Kansas wrongful death statute had economic value. Such elements included the training offered to a child, educational assistance, marital care, advice, and protection. In short, while the expert did not assign a specific dollar value to such elements, he nonetheless provided testimony that each of these elements of loss had economic value. It was up to the sound discretion of the jury to assign value to such services. In addition to other more definable elements of economic loss like funeral expenses, lost income and financial support, and household services (such as housework, handyman work, cooking, and the like).
How Are Damages Proven at Trial?
Missouri does not permit grief and bereavement as elements of damage or loss in a wrongful death lawsuit. Strangely, that is the most significant loss anyone suffers from the loss of a loved one. However, other elements of damage are very closely related to grief. Such as the loss of comfort and care of a loved one. Juries may not make a distinction between such permitted losses and those that are not permitted.
In states with limits on recovery, like Kansas, it is vitally important to prove economic or pecuniary losses. Such losses do not have any limit or artificial cap on recovery. The jury can award as much money as economic losses as one can prove. Bills for funeral expenses and the last medical expenses are generally easy to prove. Frequently, all parties can agree to the total value of such losses. Proving the economic value of lost income or what are labeled “services” is more unpredictable.
How Amount of Compensation is Determined
In most instances, attorneys retain expert witnesses to offer opinions on the value of lost income and services. Such total losses reduce to “present value.” If a wage earner is the victim, the income of the earner is aggregated for the projected “work life expectancy” of the decedent. Many resources exist for each industry and based on the age of the victim to project an earnings history and future. Just so, the economist can look at the tasks a loved one provided to the household, such as repairs, housework, lawn work, childcare, and the like and assign economic value to each service. These too are aggregated for life expectancy.
The economist reduces all aggregate values to present value. In simple terms, how much needs to be invested today, at a given interest rate, to replace the income that the decedent would potentially earn over his or her work life expectancy? One uses same exercise to project the present value of services offered to the household.
In Kansas, they frequently leave the Wentling damages without a specific monetary value with the belief that a jury, with its collective experiences and wisdom, can arrive at a value on its own for such items.
Consult with a Wrongful Death Attorney
Wrongful death claims have unique elements, require in many instances expert witnesses, and involve unique legal issues. Not every attorney who handles personal injury cases is able to handle a case for wrongful death. There is no textbook that assigns value to a specific wrongful death lawsuit. The ultimate jury award or settlement is a function of the particulars of the decedent’s life, his/her relationship with loved ones, provable economic damages, and the knowledge and skills of the wrongful death attorney. Contact our office today to speak with one of our experienced wrongful death attorneys and get help recovering compensation in your wrongful death claim.