When considering representation and suit as to a client’s losses arising from wrongful death in California, there are several initial issues to explore:
- is your client’s relationship to the decedent such that your client has a claim at all;
- who else has a claim;
- what damages can be sought by whom; and
- what are the causes of action to be pleaded in the Complaint?
Wrongful death cases also present practical problems that do not appear in many other civil actions. The injured person is no longer available to explain what happened, identify witnesses, or describe the defendant’s conduct. As a result, proving liability and causation often depends on third-party witnesses, records, physical evidence, and expert analysis gathered early in the case.
Wrongful death actions are strictly statutory. Code Civ. Proc. § 377.60. In a wrongful death action, economic and non-economic damages are recoverable. But there is no recovery under this statute for punitive damages and no recovery for damages that the decedent sustained or incurred before death. Code Civ. Proc. § 377.61.
Even where liability appears clear, causation can become the central dispute. The plaintiff must still show that the defendant’s wrongful act or neglect was a substantial factor in causing death. This issue becomes more difficult when the decedent had serious pre-existing medical conditions or other contributing factors that the defense may argue were the true cause of death.
The decedent’s surviving spouse, children, dependent stepchildren (and dependent minors residing in the household for at least six months), and dependent parents can always state a claim for wrongful death. Code Civ. Proc. § 377.60 permits recovery for these categories of relationship in all circumstances, notwithstanding any intestacy laws. If there are none of these heirs, the law of intestate succession governs. Code Civ. Proc. § 377.60(a); and Probate Code § 6402.
Where there are numerous persons with statutory entitlement to a potential recovery for wrongful death, not all of whom you can represent without conflict, it may be necessary to consult experienced wrongful death lawyers before deciding whether to proceed through a personal representative. A wrongful death action may be brought by either a statutory claimant or by the personal representative of the decedent. Code Civ. Proc. § 377.60. When proceeds are ultimately obtained, they may be distributed to persons not necessarily sharing in the estate according to the laws of succession. See Estate of Waits (1944) 23 Cal.2d 676, 680. The appropriate distribution of any verdict or settlement among various heirs can be determined either by settlement or by the Court’s allocation. Code Civ. Proc. § 377.61.
This is one reason wrongful death litigation can become difficult even before the merits are reached. California follows the rule that there is only one wrongful death action, and all heirs with a claim should be joined in that single case. That rule protects defendants from multiple lawsuits arising from the same death, but it can create internal disputes among family members about strategy, settlement, and allocation of proceeds.
Having a personal representative as plaintiff can avoid problems with your wrongful death case– for example, one need not then name, as a defendant, any heirs who do not desire your representation. Cf., Code Civ. Proc. § 382. Bringing the action in the name of the personal representative also eliminates the possible need to consolidate various actions which, in the absence of such a filing, might be separately brought by separately represented relatives.
It is important to consider claims for damages beyond potential statutory recovery for decedent’s wrongful death. If there are claims for punitive damages, medical bills, lost earnings, property damage, or other losses incurred by the decedent before death, then decedent’s personal representative (or successor in interest) should plead a separate cause of action seeking compensation for such losses. Code Civ. Proc. § 377.30; and Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1264.
Prior to 1992 legislation, pursuing such an action required establishing a probate estate in order to have a personal representative appointed. Code Civ. Proc. § 377.32 now permits (where the estate is not the named plaintiff) the filing of a declaration by one or more successors in interest, setting forth their entitlement to proceed on the decedent’s behalf. This declaration should be filed with the Complaint, with a copy of the death certificate attached.
Damages for the decedent’s pain and suffering are ordinarily not recoverable at all. See Code Civ. Proc. § 377.34. But such damages are expressly recoverable in a survivor action under the Elder Abuse Act. Quiroz, 140 Cal.App.4th at p. 1265.
A separate distinction determines whether punitive damages can be recoverable in the surviving cause of action. Under Probate Code § 573 and Code Civ. Proc., § 377.34, punitive damage claims can survive the death of the injured party: but, in most situations, that is true only if the decedent survived the accident, however briefly, or if property of the decedent was damaged or lost before death. Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 829. So it is a good idea to allege, affirmatively, that the decedent survived for an interval of time, and/or that he sustained a loss of property before his death. Otherwise, the Complaint may be subject to demurrer for failure to plead a necessary element of the cause of action.
In many wrongful death cases, the real battle is over evidence. Important proof may disappear quickly, including surveillance video, incident reports, vehicle data, 911 recordings, electronic communications, and witness recollections. Prompt investigation and preservation efforts are often critical, particularly where there is no living eyewitness able to explain the events leading to death.
Evidentiary problems can also arise from hearsay rules. Statements made by the decedent before death may not always be admissible for their truth, which can limit proof of how the injury occurred or what symptoms the decedent experienced. For that reason, contemporaneous records, independent witnesses, and admissible business or medical records often take on unusual importance.
Expert testimony may also be necessary. In medical negligence cases and other technically complex matters, experts are often required to establish the standard of care, breach, causation, and the nature of the decedent’s pre-death injuries. These issues can substantially increase the cost and difficulty of the case.
Counsel should also evaluate filing deadlines at the outset. Wrongful death and related survivor claims are subject to statutes of limitation, and a missed deadline can defeat an otherwise meritorious case. Particular care is required where the death arose from medical negligence or where public entity claim requirements may apply.
Damages issues can present their own problems. Economic losses such as financial support, funeral expenses, or the value of household services may be documented with relative precision, but non-economic damages such as the loss of love, companionship, comfort, care, assistance, protection, affection, society, and moral support are inherently more subjective. That subjectivity can make settlement valuation difficult, especially where multiple heirs have different relationships with the decedent.
Another issue to consider is comparative fault. If the evidence shows that the decedent was partly responsible for the occurrence, any recovery may be reduced in proportion to that fault. As a practical matter, defense efforts to assign blame to the decedent can significantly affect both settlement posture and trial presentation.
Finally, wrongful death cases place unusual emotional pressure on surviving family members. Depositions, medical records, photographs, and trial testimony may require them to relive the loss in detail. That emotional strain can affect litigation decisions, including whether to accept a discounted settlement simply to bring the case to an end.
Considering these issues as you decide whether to accept representation will maximize the possibility of success, and help achieve a successful relationship with your clients.
