Wrongful Death Attorney

When negligence, product defect, or reckless indifference to the safety of others results in a wrongful death, the personal injury attorneys at Monsees & Mayer, P.C. are here to help families seek compensation for the loss of their loved one.

Wrongful death cases are not quite like an injury case.  Special damages are recognized that are set out in statutes.  The statutes recognize both financial and emotional losses for wrongful death, but they are defined in ways that are different from how some folks express such losses.  Our experienced attorneys address the emotional and financial effect on families who have suffered a tragic loss. We look at the value of lost income, damage to the family as a group, and the unique ways the statutes define the grief, bereavement, and emotional pain and suffering they have been subjected to.

We work with investigators, accident reconstruction experts, and other specialists in engineering, manufacturing, forensics, and medicine, to prove a case for wrongful death.

We have 2 office locations in Kansas City, Missouri and Springfield, Missouri in which we can meet you.   Can’t come to us, we will come to you.  We routinely travel to meet our clients and potential clients throughout Missouri and Kansas.

Most personal injury cases are based on “common law”, or the traditional law passed down from Old English times.  Cases for wrongful death did not exist at common law but were created by state legislatures to fill in the unusual situation when a wrongful act resulted in death rather than injury.  The acts that give rise to wrongful death are the same kinds of acts that result in personal injury.

Acts resulting in wrongful death can be both intentional and unintentional.  A car wreck may cause someone an injury.  If the same acts cause a death, the case falls under the guidelines of the wrongful death statute.  Only certain people may file a lawsuit for wrongful death, and the damages are also governed by statute.

Automobile accidents, dangerous products, medical malpractice, dangerous construction sites, dangerous conditions of premises, and failure to provide proper security at retails establishments can all produce injuries so significant that death results.  In other words, if the act producing an injury goes so far as to result in death, the family members of the deceased have rights that arise by statute.  The family members basically stand in the shoes of the deceased and have many of the same rights the deceased would have had the injuries been non-fatal.

In the old days, if the injured party died, there was virtually nothing that could be done by his family.  Now, most wrongful death statutes also account for a situation when the death is not immediate.  In such instances, there are procedures for how such damages are claimed and pursued.

In Missouri, the same folks entitled to bring a wrongful death lawsuit are also allowed to make a claim within the same lawsuit for the decedents “survival damages”; those suffered between the onset of injury and death.  If the decedent lingered and suffered pain, medical expenses, and the like, these damages can be pursued within the wrongful death lawsuit by those entitled parties pursuant to the statute.

In Missouri, all the elements of damages may be recovered in a single action, including survival damages. Among these damages are expenses for the last illness including lost earnings and medical bills, as well as conscious pain and suffering the decedent may have suffered between the onset of injury and death. Only “conscious pain and suffering” may be recovered, so it is debatable whether an injured party who remained in a coma would be entitled to such damages.  At times, anecdotal evidence that the comatose patient responded to things said or made gestures is helpful to prove the elements of “conscious pain and suffering.”

In Kansas, two separate and distinct causes of action arise when death results from negligence; a survival action, K.S.A. 60-1801, and a wrongful death action, K.S.A. 60-1901.  While the ultimate “survival damages” can also be claimed in Kansas, such damages can only be pursued by a representative of the decedent’s estate.  Damages recovered are then distributed from the estate through the same rules of intestate succession that govern who may file a wrongful death lawsuit.

A wrongful death lawsuit is very similar to one for personal injury, but the attorney filing such a lawsuit must take into consideration the particulars of the statute.  Just as in a personal injury case, the attorney has to plead the elements of the underlying theory of recovery; e.g. automobile accident, product liability, medical malpractice, etc.  For example, if someone is injured in an automobile accident when a negligent driver runs a stop sign, the same theory can be pursued in a wrongful death case if the injured party is killed.  In the lawsuit papers filed, specific allegations need to be made to comply with the applicable wrongful death statute.

Monsees & Mayer, P.C. has built a reputation for providing exemplary legal representation focused on protecting your rights, while holding drivers, trucking companies, boat operators, health care professionals, product manufacturers, employers, and other corporations liable for their careless behavior.

We provide assistance in a range of cases, including:

Although many negligent parties have liability insurance, one still needs to name in the lawsuit the actual offending or negligent party, whether that is an individual or a corporation.  In some situations, an insurance company can be the direct party sued, but more commonly, one files the lawsuit against an individual or company.   Product manufacturers and insurance companies appear to have endless resources at their disposal, but our attorneys work with teams of experts and specialists to build a case using the latest technologies and available data on accident causes and effects. We know how to confidently prepare and present wrongful death cases that effectively convince juries and judges to deliver favorable outcomes.

Who Can File a Wrongful Death Lawsuit in Missouri?

Most commonly, the case will be pursued by the surviving spouse, children, or parents of the deceased.  In some circumstances, when there are no surviving members of that “class” of people, siblings can pursue the case.  The proper parties to bring a cause of action for wrongful death in Missouri are enumerated in V.A.M.S. 537.080:

Children

This has been expanded to include the decedent’s adult children. Adopted children may also be proper parties but stepchildren who have not been adopted by the decedent are excluded from this categorization.

Spouses

Unlike Kansas, Missouri does not recognize common law marriage, so only those who were legally married to the decedent are allowed to recover. In both states, any evidence that the surviving spouse has since remarried is not allowed to be introduced as a mitigating circumstance in the wrongful death action.

Parents

In Missouri, all parents, married or otherwise, and regardless of custody or legitimacy of the child have priority over all other potential parties to file suit for the wrongful death of an unmarried, childless, minor child. However, if paternity is in question, it must be proven before the settlement can be approved and apportioned.

Siblings

When there is no eligible party in the first category to bring the suit, it can be properly brought by a brother or sister of the decedent or their descendants.  This includes all brothers and sisters, except of course those that are step-siblings. Siblings by adoption may also properly file a lawsuit for wrongful death, if there are no surviving spouse, children, or parents.

Other Proper Parties

In rare instances, the case can be brought by someone who does not fall into one of the classes noted above.  Since wrongful death cases are designed to compensate survivors with close, family relationships to the decedent, even though the statute recognizes this third class, the potential damages may be so hard to determine that such cases are a rarity.

Who Can File a Wrongful Death Lawsuit in Kansas?

Kansas’s outlines plaintiff’s rights for wrongful death in K.S.A. 60-1902:

Kansas’ Definition of “Heir”

Although the Kansas statute seems less restrictive than Missouri’s, the use of the term “heir” shows that it is not. “Heir” refers to “one who takes by intestate succession (someone who dies without a will) under the Kansas statutes.” When a Kansas decedent leaves a surviving spouse and/or child, Kansas rules of intestate succession (how an estate is divided when a person dies without a will) exclude parents or siblings as heirs. Somewhat unfairly, if the decedent is survived by either a spouse or a child, parents have no rights for the wrongful death of a child, whether minor or adult.

The intestate succession laws in Kansas do not give parents and children the same priority and rights in wrongful death actions as they would receive in Missouri. In Kansas, when the parental rights have been severed, neither the parent of a decedent child nor the child of a decedent parent has standing to bring a wrongful death action.

This is unlike the law in Missouri where a biological relationship, regardless of parental rights and custody, allows a parent to bring the wrongful death action of a decedent child and vice versa. In Kansas the argument supporting the statute is that the wrongful death action is intended to compensate those harmed by the wrongful death of decedent, and if the only relationship that exists is biological then there cannot be any real harm.

The terrible responsibility for assessing the value of a lost life is the judge or jury who will decide the case.  Some states such as Kansas, have placed limits on how much party(ies) can recover for wrongful death.  Non-pecuniary losses, those most commonly thought of as grief and bereavement, are limited to $250,000.  Except in medical malpractice cases, Missouri recognizes no caps or limits on wrongful death recovery.  Sometimes, especially in Kansas, the key is how a given element of damages is proved or characterized.

Damages in a wrongful death lawsuit fall into two categories:

• 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, which relate to a loss of money, or something that can be directly measured in money, such as last medical expenses, funeral costs, loss of financial support, or the loss of the financial value of services the decedent provided to the family; e.g., the value of household services such as repairs around the house.

In Missouri, in addition to survival damages, damages are recoverable for pecuniary loss, funeral expenses, and the reasonable value of the services, consortium, companionship, comfort, instruction, guidance, counsel, training, and support that the deceased provided.

Except for medical malpractice cases, Missouri has no cap or limit on the damages that can be recovered in a wrongful death case.  In Kansas, by contrast, there are limits on how much one can recover for non-pecuniary damages.  There is no limit on what a party can recover, if properly proven, for pecuniary damages.  In Kansas, a host of damages that are difficult to quantify but which have financial value have been defined as pecuniary damages.  This can enhance the value of a claim beyond the cap and the easily quantifiable economic damages, such as medical expenses and lost income.  In June of 2019, the Kansas Supreme Court ruled that the state’s cap on damages for non-economic injuries for personal injury lawsuits as unconstitutional. It is unclear whether this will apply to wrongful death caps as well.

Much depends on where the case is filed.  In any state court, it is likely that from the date the lawsuit is filed, it will take 2 years to fully litigate, including a trial of the case if it is not settled beforehand.  This is certainly a realistic time table for both Missouri and Kansas.  Delays created by COVID have somewhat extended this timetable, given the compromised access to courts and delayed trial dates.

In federal courts, the time table can be stepped up a bit.  Case backlogs in federal courts are not quite as bad as state courts, and the federal courts try to follow a somewhat more aggressive time table.

None of these projections include any pre-suit investigation, which is important in any case.  Collection of medical records and retention of expert witnesses which may delay the start of litigation help limit unforeseen complications and may shorten the time of actual litigation.

The only unique feature of wrongful death proof are the damages unique to wrongful death.  Wrongful death cases are governed by state statute, and those statutes specifically define who can bring the lawsuit and what damages are compensable.

Otherwise, a wrongful death statute and the proof required does not vary from what is proven in an injury lawsuit.  If a death occurred as a result of a car accident, one still has to prove the elements of a car accident case.  However, proof of such a case, absent death, does not require proof of funeral expenses, last medical expenses, or a lifetime of a loss of a relationship with the decedent.  Moreover, at least in Missouri and Kansas, there are no limits on cases for injury, as contrasted with wrongful death.  In Kansas in particular, there are damages recognized that have pecuniary value that are unique to death cases as contrasted with personal injury.

In Kansas, a cause of action for wrongful death has a statute of limitations of two years from the date of death.  Because the Kansas statute works differently, as explained above, for “survival damages”, requiring a representative of an estate to pursue, the time limit can begin to run from the date of the wrongful act.  For example, if someone is injured in a car accident but lingers for several weeks before death, one should probably use the date of the car accident itself to be safe, rather than the date of death.

In Missouri, the statute of limitations for wrongful death claims is three years. If the death was a result from medical malpractice, there is a cause of action for “lost chance of survival” that must be filed within two years of the date the malpractice occurred.  That date may be different than the date of death.  While a true wrongful death case for medical malpractice is three years, it is wise to treat the statute of limitations for any medical malpractice case, even those that result in death, as one for two years.

If your family has been the victim of a fatal car accident, drunk driver fatality, medical mistake, or other wrongful death, you deserve to find justice today. Contact the experienced attorneys of Monsees & Mayer, P.C. and discover how we can help your family hold the guilty accountable and recover fair compensation for the loss of a loved one.