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The logical assumption of most lay people is that "wrongful death" is merely the ultimate personal injury. This, unfortunately, is not true. To know why, I will detail a little of the history of this type of claim and highlight some of the pitfalls that make this a distinct cause of action.
When our society first began requiring individuals take responsibility for their conduct, the courts determined that, there being no way to reverse the injury caused another, legal compensation would be the only available remedy. That is, the injured would have a right to money from the person causing the injury (tortfeasor). This money would compensate the injured for their loss, injury, damages, pain, suffering, etc. However, the courts found that injury claims were "personal" to the injured; injury claims could not be assigned to others (like creditors) nor split from the person. The effect was that all rights to compensation for tort injuries died with the person.
The result of the claim dying with the person was that tortfeasor's were, in effect, rewarded for behavior that killed rather than merely injured. Given that the tort system was intended to promote reasonable, safe conduct, this was a glaring injustice. The legislature stepped in to correct the problem and "Wrongful Death" statutes were passed. These statutes created a claim for the dependents of the deceased, mainly for the burial, estate administration and medical costs. "Unliquidated" (uncertain) claims such as those for pain and suffering, were not detailed in the law and the Courts strictly interpreted this new legislative cause of action. Only the specifically stated damages could be collected and only the Estate of the decedent could bring the claim.
In the past decade or so, the legislature has re-visited this legislative creation. Though the courts still strictly construe the enactments (thus requiring still the opening of an estate and the pursuit by a personal representative within a certain period of time), the new laws allow for a wider range of claims, such as compensation for loss of love and affection and claims by non-dependents. As one might expect, both the process and the presentation require familiarity with the system to ensure the best chance for maximum recovery. The assistance of an attorney who has represented estates with their wrongful death claims, such as myself, is your best choice to ensure your receipt of justice, at least to the extent permitted by Congress.
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