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Do I have a wrongful death case?

Posted by Carl Nagle | Mar 27th, 2019 |

Across America, over 100 people per day die in vehicle and industrial accidents. That’s one person succumbing nearly every 15 seconds. Unfortunately, some of those deaths take place in North Carolina; in fact, the North Carolina fatality rate is higher than many other states, averaging over 15 deaths per 100,000 people per year, approaching 1500 total.

When the tragedy of death strikes, enormous family suffering and hardship can follow, especially when it results from the legal fault of another. In those difficult times, Nagle & Associates can help you sort your legal affairs and advise you immediately on whether you have a potentially meritorious wrongful death case against any people or businesses that contributed to causing a fatal accident.

What is a “wrongful death” case?

A wrongful death case is a civil claim for damages brought by the family of the deceased against the party or parties whose careless actions or intentional conduct contributed to the death. The actions that caused the death may be negligent or even felonious. It does not matter whether the conduct is criminal, however, because a civil case for wrongful death is not a criminal case. No criminal conduct need be involved.

As in most states, North Carolina has a specific set of statue laws that lay out the particulars for bringing a claim or lawsuit for wrongful death. The fundamental requirement, beyond the death of a loved one, is that the deceased would have been entitled to bring an action for personal injuries had they lived through the accident/event. All of this and more is set forth in the N.C. Wrongful Death Act – North Carolina General Statute § 28A-18-2.

Who can be sued in a wrongful death case?

A wrongful death claim can properly be brought against anyone who is legally responsible causing the fatal injury. That might be the driver of the other car or truck that caused the accident, and, if the at-fault driver was on the job, the driver’s employer. Generally speaking, an employer is responsible for the negligent acts of its employees, so the company would also be responsible to pay money damages to surviving family members if an employee caused personal injury which ultimately leads to loss of life.

Death that supports a claim for wrongful death benefits can come from any legal cause. Sometimes it results from a dangerous product instead of a car, such as tobacco or diet pills, in which case multiple companies may each bear some share of the responsibility. Negligent professionals, careless drivers, defective product makers – all can be sued depending on the unique facts of the accident, which your attorneys will thoroughly explore the moment they agree to take your case.

Who can bring a wrongful death case in North Carolina?

The wrongful death statute speaks of “the personal representative” as being the person who can rightly file suit for wrongful death.  Technically, this means the administrator or executor of the fatal accident victim’s estate.  The court appointed estate administrator is the representative who has the power to retain counsel and to file a valid wrongful death lawsuit.  In many cases, this person is a close family member such as a spouse or child, though others such as brothers, sisters, and more distant relatives could be involved.

While the estate administrator/executor is the only party with power to retain counsel and file a wrongful death lawsuit, this does not grant any right to the administrator to control or even receive money from a wrongful death claim.  Under the N.C. Wrongful Death Act, the sole beneficiaries of a wrongful death claim are the family members who would receive money from the victim’s estate in intestacy – meaning if the decedent had died without a will.  Thus, in most cases, the immediate family members are the only people who receive compensation from a successful wrongful death case.  This would include the surviving spouse, children, and if no surviving spouse or children, benefits then could pass to surviving parents or surviving siblings.

What can I recover in a wrongful death case?

Because the case is a civil one, the losses for the wrongful death of another are principally measured in monetary terms and payable as money damages, most typically in the form of a check from the applicable liability insurance company. These damages can cover a wide range, especially when the death occurs not instantly upon impact but over days, weeks, months, and even years.

All or any part of the following for which there is proof might be recoverable, depending on the facts of your particular wrongful death case:

  • All of the out-of-pocket and billed expenses for the decedent’s death, including medical bills, hospital costs, surgical bills, pharmaceutical prescriptions, hospice, and anything else in this category related to the death and injuries leading to it.
  • Cash payment to the estate as compensation for physical pain, suffering, mental and emotional distress undergone by the decedent before his or her death.
  • Lost profits, wages, and income if the decedent was gainfully employed, and lost earning capacity if he or she was unemployed but capable of working in the future.
  • Damages suffered by a family member plaintiff, measured by a value placed on the loss of the decedent’s personal contributions, services, protective care, aid and assistance to the plaintiff.
  • Compensation to surviving heirs entitled to share in the wrongful death proceeds for the loss of the relationship with the decedent, and the loss of the decedent’s friendship, comfort, society and companionship.
  • Reasonable funeral and burial expenses.

In addition to the foregoing compensatory-style damages, punitive damages may be recovered where the defendant’s actions rise to the level of “malice or willful or wanton conduct,” as defined by the North Carolina punitive damage statute. These damages are not designed to make the plaintiff whole or pay bills incurred or compensate for suffering. Rather, the purpose of punitive damages, also known as exemplary damages, is to punish the defendant, to teach a lesson, and to set an example so that other deaths do not follow from similar malfeasance or misfeasance.

In every successful wrongful death case, money is collected for surviving family members.  The good news is that many of these cases settle privately, with no need for a painful, emotionally taxing jury trial.  However, because these are high-damages cases, insurance companies assign their best adjusters to handle these cases and they work solely toward paying the smallest amount of money in every wrongful death case.  They know that all the family really has is a mere right to sue.  Because fatal accident cause severe sorrow and hardship, family members often delay and fail to contact attorneys to assess the viability or potential value of their wrongful death claim.

Insurance companies know this and they direct their claims adjusters to approach the family early, and to try to secure a settlement agreement that is less than true value of the family’s wrongful death claim.  Also, if you act privately and without an attorney, the claims adjuster knows you are flying blind and that you want to settle the case and likely will not go to court.  For these reasons, they make unfair, low offers and try to motivate the family to accept a very unfair settlement.  Thus, it is best to speak with lawyers first, BEFORE you start cooperating with insurance adjusters who are paid to oppose the wrongful death case.  Having an attorney in your corner validates your threat of a lawsuit, controls all communications with insurance adjusters, and ensures that all valuable evidence is properly collected and presented.  Also, an experienced North Carolina wrongful death attorney knows what a jury might pay at trial, and he or she will push the insurance company to pay this amount through a private settlement.

How are damages calculated in a wrongful death case?

Calculating the damages in a wrongful death case can be tricky business, as you might have ascertained from reading the above litany of recoverable items. Generally speaking, all the items of damages are listed out and added up, but it is much more complicated and nuanced than that. This is where having experienced personal injury-wrongful death counsel can make a huge difference. From our depth of experience handling legal claims arising from fatal accidents, we know how to collect and highlight evidence of all damages and how to push insurance carriers to pay a settlement that reflects what the family would hope to collect through a successful trial.  We also know how to retain the best experts to establish legal liability and to prove all damages – from accident reconstruction engineers to establish liability, from economists and CPAs to calculate lost income and the full value of all other economic losses, to medical specialists to separate out and assess the different injuries suffered before death.

What factors impact the value of a potential settlement demand in a wrongful death case?

The value of life – and more particularly, the lose of a life – cannot be measured truly and genuinely in money. On that we all agree. But in a civil case for wrongful death, that is the only measure we have available. In trying to put a number on your loss, all of the following factors may bear on the potential settlement you may achieve in your case:

  • First and foremost, the earning capacity and actual income stream of the decedent at the time of death (because his or her lost economic contributions are determined by that). Therefore, in economic terms, the death of a practicing physician has a higher value for calculating wrongful death damages than the death of someone with a significantly smaller income.
  • The decedent’s health, age, and life expectancy (a younger, healthier decedent would be expected to thrive and contribute more over a longer period of time than a sickly person who had retired). Again, purely in economic terms, a wrongful death case has a higher value if the decedent was a younger, healthier person, and a powerful income earner.
  • The circumstances of the decedent’s death, including the pain and suffering involved, the egregiousness of the defendant’s conduct, the length of the suffering, the medical expenses and surgeries involved, the loss to the plaintiff of the companionship, love and society of the deceased – play a huge role regardless of income power. The lose therefore of a person who was deeply, highly connected to the plaintiff physically and emotionally translates to wrongful death case of greater monetary value.

Many other factors might also be included, depending on the case, which is why it is so important to retain experienced personal injury counsel in these most difficult times. We will assume all the responsibility for investigating your fatal accident case, marshaling all the evidence, collecting the medical charts and bills – and then processing all of the information and evidence with the oversight of qualified experts in an effort to maximize your case value and settlement.


At the end, of course, nothing can replace the loss of a loved one. The hope is a that a proper, substantial recovery will help to replace the support and financial contributions that the decedent would have brought home and that the act of holding all responsible parties legally liable for causing the fatal accident will bring some sense of justice and closure to surviving family members.