Addressing a sensitive topic like wrongful death in a newsletter like this is a challenge. My tendency is to keep some levity in whatever I write – but of course there is nothing funny about the untimely death of a loved one. I firmly hope nobody reading this has, or ever will have, personal experience with a wrongful death claim, but it is almost a certainty that somebody reading, or somebody within one or two degrees of separation from this audience, either has or will have experienced the loss of a loved one because of careless driving or some other act of negligence. It happens and it is tragic.
“Wrongful death” is the commonly-used term to describe the legal claim for damages arising from the criminally- or negligently-caused death of a person. Unlike what we call a “survivor action” – a personal injury claim belonging to the estate of a deceased person for the pain, suffering, fear, and other physical and emotional injuries a person experienced from a fatal injury – the wrongful death claim belongs to the survivors of the decedent. However, because in a wrongful death case, unlike a typical personal injury claim, the person with the right to make the claim is not the person who was directly injured, it can be less than obvious how to proceed.
(First, as always, if you think you might be legally entitled to wrongful death damages, talk to an attorney. There is no substitute for timely, experienced legal advice.)
Generally, though, when a person is negligently or otherwise wrongfully killed, four possible people or categories of people may bring a wrongful death claim, in this order of priority:
- If the decedent was married, the surviving spouse may bring the claim. In this case, any recovery would be shared equally by the spouse and any children, with the spouse receiving no less than one-third of the total recovery;
- If there is no surviving spouse but there are children, the children may bring the claim;
- If there is no surviving spouse and no children, the parents may bring the claim;
- If nobody else qualifies to bring a wrongful death claim, the personal representative (executor or estate administrator) of the decedent may bring the claim, with the recovery to be held for the benefit of the decedent’s heirs.
Calculating the value of the wrongful death claim is an exercise in both economics and philosophy, as Georgia law makes the measure of damages in such a case the “full value of the life of the decedent.” That “full value” is to be looked at from the decedent’s perspective, not that of the survivor(s), and includes both economic and non-economic damages.
For example, if the decedent was in the middle of a career, the economic damages would include whatever the decedent would have been reasonably expected to earn for the rest of his or her life. If the decedent was nearing the end of a career or already retired, the economic damages would generally be lower; if the decedent was especially young and had more earning years in the future, the economic damages would generally be higher. Making this kind of calculation often requires the services of an expert economist. Georgia makes the calculation a bit easier, though, and considerably more favorable to the claimant, by requiring that the value of the decedent’s life be calculated “without deducting for any of the necessary or personal expenses” the decedent would have incurred if he or she had lived.
On the non-economic side the analysis tends toward the philosophical. Obviously life expectancy is a factor, and one we have some proven tools to estimate, but how do you put a value on that life expectancy? To borrow from Broadway, do you measure “in daylights, in sunsets, in midnights, in cups of coffee, in inches, in miles, in laughter, in strife?” Truths learned, tears cried? From the decedent’s perspective, perhaps the most important consideration is the enjoyment the person missed out on because his or her life was cut short. Factors to consider would include the person’s age, health, activities, family relationships, friendships, hobbies, independence, responsibilities, and even personality, but ultimately this has to be determined by the enlightened conscience of an impartial jury. The calculation is necessarily subjective – and complex – and in the hands of a jury it could take a long time to reach a consensus.
In any event, the value of a life lost is enormous, and no amount of compensation can replace a loved one or the shared time lost, so we should remember to live every day to the fullest and cherish our loved ones as much as we can. As always, I hope nobody reading this ever needs to talk to us about a wrongful death or other personal injury claim. Tragedies happen, though, and when they do we are here to help you, all the way.