North Carolina law provides that the claim for wrongful death is “derivative” of the victim’s rights. Thus, it derives from the same rights the decedent would have had he/she survived. Thus, a wrongful death claim can be presented only if the injured person would have had a claim for their injuries, had they lived. Any and all defenses the defendant would have to such a lawsuit brought by the injured person will also be available in a wrongful death action brought by the estate’s Personal Representative. While some defenses reduce case value, others end the case and terminate all payment rights.
Insurance companies and their lawyers always work to either reduce case value or to avoid payment obligations entirely by bringing forward every legal defense available under North Carolina law. Regardless of the tragic nature of fatal accidents, the defense will look only at their own legal and financial interests. Wrongful death defendants are allowed to assert all of the same defenses available in general civil lawsuits. These legal defenses include procedural defenses that bar all claims, such as lack of jurisdiction, failure to state a proper legal claim, or failure to file the lawsuit within the deadline imposed by the statute of limitations
The defense will also challenge liability and seek to avoid legal responsibility for the fatal accident. Claimants in wrongful death actions should be particularly mindful of North Carolina’s pure contributory negligence law. Under this law, a N.C. wrongful death claimant cannot collect if the defense can show that the decedent contributed even slightly (just 1%) to causing the accident or injuries that resulted in death. Because wrongful death claims are typically quite valuable, the most experienced insurance adjusters are assigned to these cases and they begin working immediately after the claim is reported to locate and preserve evidence supporting this defense.
Insurance carriers in these cases typically cherry-pick the financial claims, and dispute the amount of future income that might have been earned by the decedent. They also will not hesitate to challenge the quality of family relationships. In fact, claims adjusters and insurance defense lawyers often look for ways to attack the character of the decedent. If you anticipate and stand ready for this approach, you will be properly prepared to meet the defense head-on with evidence which would show a jury that quality relationships have been lost, and that the decedent was a person of true value to the family.