How To Pursue Wrongful Death After a NC Truck Accident
Truck accidents commonly result in catastrophic injuries and, in more tragic cases, truck collisions cause fatal injuries. Loaded tractor-trailers weigh 80,000 pounds, and when a careless or fatigued truck driver fails to notice a red light or commits other driver errors, these huge vehicles cause tremendous damage to private passenger autos. Victims of North Carolina truck accidents must be very careful to protect their legal rights for these important reasons:
- Truck drivers are insured by large commercial policies with coverage limits of $1 million or more, and the adjusters who handle these claims are trained to avoid or minimize victims’ injury claim payments.
- In serious injury cases, the medical evidence must be VERY carefully assembled, analyzed, and presented to allow the victim to collect full payment for future medical needs, future pain, and suffering, lost earning capacity and forced early retirement, and for all of the money damages that can be claimed. The law of damages is very complex, and the claims adjuster will NOT help you build your case.
- North Carolina has a pure contributory negligence law. In NC, if the victim is slightly at fault for the collision (even just 1% at fault), they have NO claims. Trucking companies always try to find slight blame and deny injury claims. The immediate thorough crash investigation is essential to protect evidence to provide truck-driver fault and the victim’s innocence.
In fatal injury cases, trucking companies always try to find some way to blame the deceased party and, when they can’t, they try to earn the family’s trust and settle the wrongful death claim for some amount below their available insurance coverage. Remember, claims adjusters are paid cost-control experts, and their sole objective is to protect the insurance company’s funds. With so much at stake, you should at least secure a free consultation with an experienced truck accident attorney before you begin cooperating with the claims adjusters who are paid to oppose your claims.
Under North Carolina law, fatal injury claims are governed by statute. Unlike a negligence claim resulting in less serious injuries, the rights of the surviving family members are entirely governed by the North Carolina Wrongful Death Act (N.C.G.S. 28A-18-2) and the North Carolina Civil Practice Act, and our evidence laws. The laws are different in wrongful death cases, and you should learn and understand your legal rights as soon as possible if a friend or loved one loses their life due to a truck crash.
Understand the Statute of Limitations
The lawsuit filing deadline is shorter in fatal injury cases. If a victim survives their injuries and seeks to present a typical personal injury claim in North Carolina, they have three years from the collision date to file suit and thereby protect their legal right to personal injury compensation. If the injuries result in lost life, the surviving family members only have two years from the date of your loved one’s death to begin a legal claim.
While you can certainly take time to decide what to do, keep this statute of limitations in the back of your mind. North Carolina law also only permits the decedent’s personal representative to file the wrongful death lawsuit.
Open an Estate and Appoint an Estate Administrator
A wrongful death claim is presented by the Administrator of the victim’s estate. Further, it is the Administrator of the estate who has the legal authority to retain a lawyer and to either sign a Release to settle the wrongful death claim or stand with counsel as Plaintiff if the wrongful death case has to be tried.
Because an estate Administrator is needed in these cases, it is wise to promptly open an estate for the decedent. Estate law is beyond the scope of this article, and we will not go into great detail on how to open and probate an estate. However, if the decedent had a will, the will is usually the first place to look to determine who would be best qualified to serve as Administrator/Executor. If there is no will, the surviving family members who stand to receive wrongful death proceeds should all agree on who will serve as Administrator. If the family members cannot agree, the court will have to hear from all heirs and decide who will serve as Administrator.
Once an Administrator is appointed, that person can retain an attorney to pursue the wrongful death claims. In many cases, our firm gets involved early and we can advise the victim’s family on how to open the estate. We are also authorized, if the decedent’s heirs all agree to retain us, to begin working on the case before the estate is formally opened. However, we cannot order medical records and complete other essential tasks until the estate Administrator is properly appointed.
Understand Who Collects Wrongful Death Payments
Wrongful death proceeds are paid to the “heirs at law” of the victim. This means that the people who would inherit from the decedent in intestacy are the sole beneficiaries of a wrongful death claim. The intestacy statute is the law that writes a will for people who fail to write their own will before they pass. Essentially, the law presumes that most people would leave money first to their surviving spouse, and then also to their children, and in cases where there is no spouse or children, to the victim’s surviving parents or siblings.
The Administrator may be an heir, but it is important that all heirs and family members understand that the Administrator does not have greater rights and cannot stand in the way of their right to collect. Thus, it is wise to agree as a family to allow for a single family member to serve as Administrator. Once an Administrator is appointed, the Clerk of Court will issue Letters of Administration. Each copy will have a raised seal and this is the legal document that grants authority to the Administrator to handle the legal affairs of the estate – to hire a lawyer, to pursue a wrongful death case, to handle bank transactions, to sell real estate, etc.
When the wrongful death case resolves and money is collected, pursuant to the Wrongful Death Act, benefits are paid to the following in this exact priority:
- Attorneys fees and case costs for the pursuit of the wrongful death case
- Funeral Expenses for the decedent
- Up to $4,500.00 for unpaid medical bills of the decedent (this does not include any Medicare/Medicaid or other health insurance liens which are valid and can be asserted against wrongful death claim proceeds)
- The full remaining balance is then distributed to surviving family members according to the NC Intestate Succession Act
Hire a Wrongful Death Attorney
Once you’re ready to begin the legal process, your first step should be hiring a wrongful death attorney to assist you.
Wrongful death cases can bring about a lot of challenging emotions. Not only must you relive the trauma that led to your loved one’s death, but you also need to prove that another party was responsible and navigate a complicated legal process. Instead of attempting this process on your own, you can take time to grieve while your attorney investigates the truck accident, nails down the legal liability of the truck driver and all other parties who might be responsible for causing the fatal injuries, handles assembly and presentation of all medical evidence, maximizes evidence of all other claims for money damages, negotiates with all insurance carriers, and pushes for either a generous settlement or a proper jury verdict.
Your attorney can help you with every aspect of the case while advising the family, taking control of all insurance communications, and by acting as your personal legal guide through the entire process.
Calculate Your Case Value
Even though you could never put a monetary value on your loved one’s death, understanding what your case may be worth can prevent you from accepting an insufficient offer.
Your North Carolina wrongful death attorney can help you calculate the economic and non-economic expenses involved in your case. Economic expenses may include:
- Your loved one’s medical bills
- Funeral costs
- Lost wages that can no longer be earned to support the family
- Physical damage to their vehicle
Meanwhile, non-economic damages may consist of:
- Pain and suffering the decedent endured before passing
- Loss of the future companionship of the decedent
- Emotional distress due to the lost life
- Lost services, protection, and care from the decedent
You may decide to pursue punitive damages to punish the defendant and increase your payout as well.
Collect Evidence to Prove the Trucker’s Negligence
Your attorney will spend ample time collecting evidence to show that the truck driver’s negligence caused the accident. They may also show that other parties, such as the trucking company or other party (i.e. the facility that maintains the truck, any shipper who improperly loaded the truck, etc.) were partially responsible for your loved one’s death. In these cases, multiple parties and multiple insurance policies can be accessed to collect wrongful death benefits.
Pictures, videos, and witness testimonies of the accident scene are all compelling types of evidence. But your attorney can also use your loved one’s medical records, the police report, and any other relevant documentation to recreate the accident scene and convince the judge and jury that the other party was responsible for your loved one’s death.
Seek Financial Compensation
Your attorney will guide you through the legal process to seek financial compensation for your loved one’s death. You may need to prepare for a trial in which your attorney presents the evidence against the defendant, and the defendant’s attorney has the opportunity to counter it.
Many wrongful death lawsuits settle out of court. Your attorney can help you review your settlement offers and accept a sufficient payout.
Working with an experienced law firm can streamline your wrongful death case. Contact Nagle & Associates Personal Injury Trial Lawyers today at 800-411-1583 to schedule a free consultation with a North Carolina wrongful death attorney.