When someone dies due to the negligence of a person or company, these cases are generically known as wrongful death cases. Wrongful death can be a result of a car wreck, motorcycle wreck, truck wreck, pedestrian collision, construction accident, dangerous condition on someone’s property, or even medical malpractice or nursing home neglect. If the death occurs on the job, sometimes the recovery is limited to workers compensation death benefits. If the death occurs on the job, and someone or some company, other than the worker’s employer or coworkers, was negligent, there may be both a workers compensation case and a third party liability case against the negligent party. A wrongful death sometimes results in two separate civil cases, an actual wrongful death case pursuant to K.S.A. 60-1901 et. seq., which belongs to the deceased’s legal heirs. These statutes allow the legal heirs to recover for funeral expenses, mental anguish, suffering, bereavement, loss of society, companionship, comfort or protection, loss of marital care, attention, advice or counsel, loss of filial care or attention, loss of parental care, training, guidance or education, in addition to medical expenses and economic loss for the deceased’s earnings. The second civil case is commonly known as a survival claim wherein the estate of the deceased has a right to recover for the deceased for conscious pain and suffering, mental anguish, disability and disfigurement prior to death along with medical expenses and wage loss. This type of case requires proof of some level of consciousness prior to death.
These cases often have very high value due to the obvious loss of life and obvious substantial damages. These cases require legal representation to protect the family from an insurance company’s attempts to minimize the claims. It is imperative that the family have no contact with the insurance adjuster as any information provided to the insurance company is often used against the family to try and minimize the damages. You need an attorney from the very beginning to perform a thorough investigation of the facts of loss and to assist proving the damages. Experts are commonly retained on both the liability issues and the damage issues.
One benefit of pursuing the survival action in addition to the wrongful death action is the potential for the recovery of additional damages known as Wentling damages. These damages are really economic losses. An expert can quantify the economic loss to the heirs for the deceased’s labors. In other words, while the person was alive, they provided services such as mowing the lawn, caring for family members, cooking, etc. When that person dies, the people that survive have lost their loved one’s services to care for them. Kansas laws have limits on how much can be recovered for noneconomic or non pecuniary losses. Noneconomic or non pecuniary losses are losses that are abstract and not “out of pocket” expenses like medical bills, wage loss, funeral expense, etc. Due to these limitations on noneconomic or non pecuniary losses, it can be very important to quantify the economic or pecuniary loss of Wentling damages to increase the recoverable damages. This usually requires hiring an expert such as an economist to determine these additional damages. Another benefit of pursuing the survival action is the potential to recover punitive damages in the event the negligence resulting in the death was gross negligence, willful or wanton conduct, or reckless endangerment of life, and these punitive damages are not ordinarily covered in a wrongful death claim.
Our office is experienced at handling wrongful death cases. We have handled these types of cases for years. It is important to allow a complete investigation by your attorney to assist proving your case and it is more important not to provide a tape recorded statement to the insurance companies as these statements could easily hurt your case. Call us and we can help you with your cases! THE INITIAL CONSULTATION WITH THE TWO BRIANS AT THE ORIGINAL PISTOTNIK LAW OFFICES IS ALWAYS FREE AND WE CHARGE NOTHING UP FRONT. NO RECOVERY, NO CHARGE TO YOU WHATSOEVER!