Death

1.   When can a claim for Personal Injury “Wrongful Death” be made?

Whenever the death of a person is:

  1. Caused by the wrongful act or neglect of another person or company; and
  2. The negligence was such that if death had not ensued, the party injured could have maintained an action to recover damages.

2.   Who brings this type of claim?

The personal representative of the decedent’s estate is the only one authorized by law to make this claim and/or file a law suit to recover compensation.

3.   What compensation is collectable in this type of claim?

Briefly stated, the monetary value of financial support, services, comfort and companionship that the decedent would have contributed to their spouse and/or next of kin, had they lived.

This type of claim is onlymade for recovery of damages suffered by the decedent’s close family or “next of kin”. Damages to the decedent are not included. However, these may be joined with a separate action, on behalf of the decedent’s estate, in which the decedent’s damages (pain and suffering, last medical expenses, and funeral expenses) may be claimed.

4.   Who can claim a “monetary loss”?

The “monetary loss” referred to in a wrongful death claim may be inferred when the decedent owed a legal duty to support the claimant (a child or children). But, others may claim this monetary loss if there is evidence that the decedent was providing them with some financial support at the time of death.

All claims for “wrongful death” must be reduced to a monetary value – even comfort and companionship. While not always easy to assess, the closer the relationship, the more monetary loss.

5.   What is meant by the term “next of kin”?

Those persons who would be beneficiaries of the decedent’s estate under the statutes of distribution are “next of kin”. In Nebraska next of kin beneficiaries fall into the following order: 1st – spouse and children; 2nd – parent(s); 3rd – children of parents; 4th – grandparents; 5th – children of grandparents; and so on.

6.   How are “lost contributions of financial support” calculated?

The key in calculating a beneficiary’s lost contributions resulting from the decedent’s death, is the decedent’s life expectancy as well as the life expectancy of the claimant. “Life expectancy” is determined by the decedent’s physical and mental health immediately before their death, together with standardized “mortality tables” regarding general life expectancy. However, damages are only awarded for the life expectancy of the decedent or spouse/each next of kin, whichever is shorter . So, for example, if the decedent was expected to live another 40 years, but the claimant only has a life expectancy of 30 years – the calculation must then be made on the lower of the two life expectancies. In this example, 30 years.

7.   Are “grief” or “mental suffering” compensable for a claimant?

No, neither grief nor mental suffering by a claimant is compensable. So whether the claimant is deeply saddened by the decedent’s death, or not much at all, is irrelevant.

Similarly, it matters not whether a surviving spouse has, or has not, remarried.

8.   Is compensability of a claimant affected by the size of their inheritance from the decedent, or other monetary benefits?

No, the fact that a spouse, or next of kin, may receive an inheritance from the decedent’s estate is not to be considered. Nor is it relevant whether or not the claimant(s) may have received insurance or workers’ compensation benefits as a result of the decedent’s death.

9.   What is the time limit for bringing this type of claim?

A wrongful death claim must be commenced, or settled within two (2) years after the decedent’s death.

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