Considering a Wrongful Death Lawsuit But Don’t Know Where to Begin?

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If your loved one died in an accident caused by a person or company’s negligence or inaction, you may be eligible to file a wrongful death lawsuit seeking damages. Damages can include compensation for medical bills, loss of companionship, and unearned income the deceased would have earned over their lifetime. Call 866-236-9479 to speak with a wrongful death claim lawyer at Baron & Budd, P.C. or complete our contact form online.

When someone we love dies unexpectedly or untimely death, it is devastating. If you feel like you have a strong case against those responsible for your loved one’s death, and that you have plenty of time to grieve before pursuing a lawsuit, think again. The time limit to file a wrongful death claim and terms of eligibility vary significantly from state to state. We can help you start the legal process and, if you qualify, file a lawsuit on behalf of your loved one.

Some states place more restrictions than others on who can file a claim, the amount of compensation you can seek, and how long they have to do so before the claim is barred by the statute of limitation. The state of California, for example, has a one-year statute of limitations from the time of the victim’s death.

Our Lawyers Can Help You File a Claim in Texas, California, Louisiana, Pennsylvania, Missouri & Any Other State in the US

Don’t wait too long to start this important conversation with an attorney, contact our law firm so we can start preparing your case and file a wrongful death lawsuit.

Wrongful Death Claim Eligibility: Who Can File Varies by State

The people eligible to file a wrongful death claim on behalf of a deceased loved one varies from state-to-state. In Texas wrongful death lawsuit claims can be made by the victim’s widow, children, heirs, siblings, partner, or other dependent or executors named in the will of the deceased.

In California, however, siblings, heirs and estate executors cannot file a wrongful death lawsuit for the deceased. Only someone’s surviving spouse, partner, child, or grandchild can file a wrongful death claim in the Gold State.

Common Claims Made in Wrongful Death Cases

Plaintiffs may indicate a number of different causes that ultimately resulted in fatal injuries and death. These include:

  • Neglect
  • Wrongdoing
  • Default
  • Lack of Skill
  • Carelessness
  • Failure to Act

The defendent’s role in the events that caused your loved one’s death must be proven for your lawsuit to move forward and go to trial.

Texas Civil Code Regarding Wrongful Death Claims

Texas Civil Code governs personal injury, wrongful death, and other tort claims in the lone star state like product liability and premises liability.

When is someone eligible to file a claim in a wrongful death lawsuit?

Texas Civil Practice & Remedies Code § 71.002 Cause of Action states specific circumstances in which a person can file a wrongful death claim. Generally speaking, in any situation in which the victim would have had a viable personal injury claim against another person or actor had they not died, a wrongful death claim may be made.

Texas also recognizes wrongful death claims for the death of unborn children at every stage of development: from conception to full term. California does not recognize a fetus in utero as a life until after birth, so wrongful death claims cannot be made in the state for the death of unborn children. However, if the fetus sustains injuries before birth and dies after delivery because of those injuries, parents of the deceased infant can file a wrongful death lawsuit seeking damages.

Examples of Cases Involving Wrongful Death Claims

Claims for wrongful death include mesothelioma, fatal accidents or illnesses, car and truck accidents; defective products like recalled airbags or tires; dangerous medical implants and devices such as IVC filters or pelvic mesh; or death from prescription drug complications and side effects like Nexium, Avelox, or Abilify.   If the surviving family members are able to prove that, if not for this intervening cause or situation, the decedent would still be alive, they may prevail in a wrongful death claim.

In some cases, the defendant chooses to offer an out-of-court settlement to avoid the expense of a lengthy trial. A settlement offer may be accepted up to the point when a jury delivers the verdict for the defendant’s negligence. A settlement can be offered and accepted after the defendant is found to have been negligent by a jury.

What must you prove to win a wrongful death trial or settlement in Texas Civil Courts?

In order to win a judgment against a defendant in a Texas Negligence and Wrongful Death lawsuit, a plaintiff will need to establish three key factors:

  1. the defendant owed the decedent a duty of care; and
  2. the defendant negligently breached this duty of care;
  3. the breach of duty resulted in the decedent’s death.

After establishing liability, the plaintiff’s wrongful death lawyer must prove damages, generally by introducing evidence to show the decedent’s future earning power, medical bills, lost consortium, and any other financial and personal losses resulting from his or her death.

Who can sue for wrongful death in Texas?

In the lone star state, a surviving spouse, child (or children), heir, trustee, estate executor, or parents of the victim have legal standing to sue for wrongful death. If none of the eligible plaintiffs come forward or express their intent to file a lawsuit within three months, the executor of the decedent’s estate has the option to file a wrongful death lawsuit on the estate’s behalf — just as the decedent would have filed a personal injury lawsuit if he or she had lived.

Common-law marriages or engagements do not qualify the surviving partner to benefit from a wrongful death suit with one important exception; a common-law spouse or fiancee’ who is the parent or guardian of the decedent’s child can file on the child’s behalf in Texas.

What is the statute of limitations to file a wrongful death suits in Texas?

The statute of limitation for wrongful death lawsuit claims in Texas is two years from the date of the victim’s death. However, the time limit isn’t always measured from the date of death.

Regarding minors for example, the statute of limitation may not begin running until they reach the age of majority (unless a guardian can and will file on their behalf), and in situations where fault isn’t readily apparent, the statute of limitation may not begin running until the plaintiffs learn (or should have learned) that another person could bear responsibility for their loved one’s death.

Laws Regarding California Wrongful Death Claims

Under California law, the situations in which a wrongful death lawsuit can be brought — and the facts that must be proven to prevail — are largely similar to those in Texas. However, there area few key differences regarding who can file, how long they have to file, and whether medical negligence was involved.

Who Can File a Lawsuit for Wrongful Death in California?

In California, surviving spouses or domestic partners and children — or grandchildren from children who have passed away — have standing to sue for wrongful death. Surviving parents, siblings, and grandparents cannot file a wrongful death claim for the deceased victim even if they have no surviving children or spouse.

What is the time limit, or statute of limitations, for filing a Wrongful Death Lawsuit in California?

In most situations, plaintiffs must file their lawsuit within two years of the decedent’s death in order to avoid expiration of the statute of limitation. However, in cases of medical negligence, the statute of limitation will begin running after the injury was or should have been discovered, and will expire one year from this point (or three years from the medical procedure), whichever date is earliest.

If you are wondering whether you are eligible to file a claim, contact a wrongful death lawyer at our firm to schedule a free case review. We’ll find out if you are eligible to file a claim and take care of everything to help you hold the negligent party accountable for their wrongdoing. We have offices in the Los Angeles area (Encino) and San Diego if you’d like to meet with us there, or we can arrange another location for meeting if you prefer.

Laws & Civil Code for Louisiana Wrongful Death Claims

Louisiana law treats certain aspects of wrongful death much differently than other states, including its expansive list of potential plaintiffs.

Who can file a wrongful death claim in Louisiana?

According to Louisiana Civil Code § 235.2 Wrongful Death Action, after a person dies because of someone else’s negligence or wrongdoing the following parties can file a wrongful death claim for compensation:

“(1)  The surviving spouse and child or children of the deceased, or either the spouse or the child or children.

(2)  The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving.

(3)  The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.

(4)  The surviving grandfathers and grandmothers of the deceased, or any of them, if he left no spouse, child, parent, or sibling surviving.

B. The right of action granted by this Article prescribes one year from the death of the deceased.

C. The right of action granted under this Article is heritable, but the inheritance of it neither interrupts nor prolongs the prescriptive period defined in this Article.

D.  As used in this Article, the words “child”, “brother”, “sister”, “father”, “mother”, “grandfather”, and “grandmother” include a child, brother, sister, father, mother, grandfather, and grandmother by adoption, respectively.

E. For purposes of this Article, a father or mother who has abandoned the deceased during his minority is deemed not to have survived him.”

​Unlike many states (including Texas), Louisiana doesn’t limit potential wrongful death plaintiffs to the parents, spouse, or children of the decedent, but also to the siblings and grandparents. However, these more distant relatives don’t come into play unless the closer ones predeceased the decedent (or, in the case of children, never existed).

What is the statute of limitation for wrongful death in Louisiana?

Louisiana has a much shorter statute of limitation for wrongful death claims than other states, requiring plaintiffs to bring an action within one year of the date the cause of action accrued. Although there are some circumstances that can toll the statute of limitation, as in other states, the relatively short time period means that acting quickly is imperative.

File a Wrongful Death Lawsuit – Baron & Budd, P.C.

Contact us online or click to call 866-236-9479 and speak with the wrongful death lawyers at Baron & Budd, P.C. We represent family members of deceased victims across the country, and fight aggressively in pursuit of justice. With over three decades of experience and a commanding reputation among personal injury law firms, you can trust us to give your case everything you have if you qualify. We have local offices in Austin and Dallas, Texas; San Diego and Los Angeles, California; Baton Rouge and New Orleans, Louisiana. Let us help preserve and protect your loved one’s legacy and dignity.

Sources

  1. California Code of Civil Procedure § 337.60 – 337.62, Wrongful Death https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=377.60.&lawCode=CCP
  2. Texas Civil Practice & Remedies Code § 71.002, Cause of Action. http://www.statutes.legis.state.tx.us/Docs/CP/htm/CP.71.htm
  3. Louisiana Civil Code § 235.2, Wrongful Death Action. http://legis.la.gov/Legis/law.aspx?d=109371
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