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When To Sue or Not to Sue for Wrongful Death

When considering representation and suit over a client’s losses arising from the death of another in California you need to start by asking a few questions.

  1. Is your client’s relationship to the deceased such that your client has a claim at all
  2. Who else has a claim
  3. What damages can be sought by whom
  4. What are the causes of action to be pleaded in the complaint?

One start to answering these questions is the five rules below. These rules are not intended to handle every fact situation -for example, unusual cases such as those involving putative spouses or the rights of adopted children when the biological parent dies. But they will guide you through most typical fact situations.

Wrongful-Death Actions

Wrongful-death actions are strictly statutory. Justus v. Atchinson, 19 Cal.3d 564 (1977); Code of Civil Procedure 377.60. In a wrongful-death action, economic and non­economic damages are recoverable as may be just. Compare, California Civil Jury Instruction 39.21 (recovery permitted for loss of love, companionship, comfort, affection, society, solace or moral support).

But there is no recovery under this statute for punitive damages and no recovery for damages that the deceased sustained or incurred before death. Code of Civil Procedure 377.61.

Among the rules that apply to these claims are the following:

Rule 1:

The decedent’s surviving spouse, children, dependent stepchildren (and dependent minors living in the household for at least six months) and dependent parents can always state a claim for wrongful death.

Code of Civil Procedure 377.60 permits recovery for these relationships in all circumstances, notwithstanding any intestacy laws. “([T]he intestacy laws permit a decedent’s children to maintain a wrongful death action even if the decedent’s entire estate passes to a surviving spouse.” Cheyanna M. v. A.C. Nielsen Co., 66 Cal.App.4th 855 (1998).

Rule 2:

If there are no heirs as described in Rule 1, the law of intestate succession governs: Parents (irrespective of dependency) may start a wrongful-death action; if there are none, siblings (or children of a deceased sibling) may do so; if none, grand­ parents may do so; if none, children of a predeceased spouse may do so; if none, the next of kin may do so.

In the absence of any of the heirs described in Rule 1, Code of Civil Procedure 377.60(a) states that a wrongful-death action may be brought by “the persons… who would be entitled to the property of the decedent by intestate succession.”

Probate Code 6402 governs intestate succession. It provides that “the part of the intestate estate not passing to the surviving spouse under [Probate Code] 6401, or the entire intestate estate if there is no surviving spouse, passes as follows:

(a) to the issue of the decedent;

(b) if there is no surviving issue, to the decedent’s parent or parents equally;

(c) if there is no surviving issue or parent, to the issue of the parents or either of them;

(d) if there is no surviving issue, parent or issue of a parent, but the decedent is survived by one or more grandparents, … to the grandparent or grandparents equally.”

Rules 1 and 2, along with reference to the applicable statutes, will help you quickly ascertain whether the person who has consulted you has the standing to assert a pecuniary claim for wrongful death of the deceased.

Rule 3:

In whose name should the action be brought: When numerous people are statutorily entitled to a wrongful-death recovery, not all of whom you are able to represent without conflict, consider the alternative of setting up an estate and filing a single action in the name of the personal representative as plaintiff.

A wrongful-death action may be brought by a statutory claimant or, in the alternative, by the personal representative of the decedent. Code of Civil Procedure 377.60. When proceeds are obtained by suit prosecuted by the personal representative, they may be distributed according to the wrongful-death statute and distributed to people not necessarily sharing in the estate, according to the laws of succession. See Estate of Waits, 23 Cal.2d 676 (1944).

“Wrongful-death actions are strictly statutory. … But there is no recovery for punitive damages or damages the deceased sustained or incurred before death.”

Proceeding in such a manner thus involves only minimal probate entanglements. At the same time, having a personal representative as the plaintiff can avoid problems – for example, one need not then name, as a defendant, any heirs who don’t want your representation. Naming these unrepresented heirs as defendants would be required otherwise, because a wrongful-death action is subject to a “one-action rule.” National Metal 61 Steel Corp. v. Colby Crane & Mfg. Co., 200 Cal.App.3d 1111 (1988). Bringing the action in the name of the personal representative rather than the individual heirs also eliminates the possible need to consolidate various actions that in the absence of such a filing, might be brought separately by separately represented relatives.

The appropriate distribution of any verdict or settlement among various heirs can be concluded later, either by settlement, or, if necessary, by the court’s allocation. Code of Civil Procedure 377.61.

Survivor Actions

Rule 4:

If there are claims for punitive damages, for medical bills, lost earnings or other losses incurred by the de­ ceased or for property damage, then the deceased’s personal representative should plead a separate cause of action seeking compensation for such losses.

Rule 5:

If such a “survivor action” is included in your complaint and no personal representative has been appointed for the deceased’s estate, remember to file a declaration of the successor(s) in interest under, and complying with, Code of Civil Procedure 377.32.

Claims for medical bills .or lost earnings incurred before death or for property damage belong to the deceased and must be pursued by either the personal representative or successor in interest. Code of Civil Procedure 377.30. “Unlike a cause of action for wrongful death, a survivor cause of action is not a new cause of action that vests in the heirs on the death of the decedent. It is instead a separate and distinct cause of action which belonged to the decedent before death but, by statute, survives that event.” Quiroz v. Seventh Ave. Center, 140 Cal.App.4th 1256 (2006).

Before 1992 legislation, pursuing such an action required establishing a probate estate in order to have a personal representative appointed. Now, Code of Civil Procedure 377.32 permits, alternatively when the estate is not the named plaintiff, the filing of a declaration by one or more successors in interest, wherein they essentially set 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. See Code of Civil Procedure 377.32. In such circumstances, if hypothetically the successor in interest also is pursuing a wrongful-death claim individually, the case might be captioned: “Carl Claimant, individually and as successor in interest of decedent John Smith, plaintiff.” At least two causes of action would be set out: one seeking damages for wrongful death and one seeking on the deceased’s behalf those damages that are recoverable in a survivor action.

Damages for the decedent’s pain and suffering ordinarily are not recoverable at all. See Code of Civil Procedure 377.34. But “[t]here is at least one exception to the rule that damages for the decedent’s pre-death pain and suffering are not recoverable in a survivor action. Such damages are expressly recoverable in a survivor action under the Elder Abuse Act.” Quiroz.

A separate distinction determines whether punitive damages can be recoverable by a survivor action. Under Probate Code 573 and Code of Civil Procedure 377.34, punitive-damage claims can survive the death of the injured party. Carr v. Progressive Casualty Ins. Co., 152 Cal.App.3d 881 (1984).

But such damages are not recoverable in all cases. “.Punitive damages are …recoverable in an action under Probate Code Section 573 by the personal representative of the decedent’s estate if the decedent survived the accident, however briefly, or if the property of the decedent was damaged or lost before death.” Grimshaw v. Ford Motor Co., 119 Cal.App.3d 757 (1981).

This distinction has been held proper as rationally related to a valid legislative objective: Ford Motor Co. v. Superior Court, 120 CaJ.App.3d 748 (1984). The only time such proof is not necessary is when the death resulted from a homicide for which the defendant has been convicted of a felony: in such cases, punitive damages may be recovered, “whether or not the decedent died instantly or survived the fatal injury for some period of time.” Code of Civil Procedure 3294(d).

Thus, when punitive damages are asserted in other than a homicide situation, allege, affirmatively, that the deceased 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.

Although these suggested rules won’t be sufficient to cover every factual situation that arises, they should provide useful guidance in the most frequently occurring circumstances involving potential claims for the death of one related to a client.

Andy Gillin and Ralph Jacobson, of Gillin, Jacobson, Ellis and Larsen, represent plaintiffs in catastrophic-injury and wrongful-death cases. They can be reached at Andy@gjel.com and Ralph@gjel.com.