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​Who Can File a Wrongful Death Suit?

​Who Can File a Wrongful Death Suit?

Losing a loved one is never easy, especially if that loss was preventable. When a person dies in an accident that someone else caused, their surviving family members may be eligible to file a wrongful death claim or lawsuit seeking various damages.

Wrongful death results from the neglect, default, intentional act, or wrongful act of someone else. For example, suppose a negligent driver causes a car accident that leads to a person’s untimely death. In that case, a surviving family member can file a wrongful death claim with the at-fault driver’s insurance company.

Various family members can file a wrongful death claim within the applicable statute of limitations period, including the decedent’s spouse—and in some cases, the decedent’s siblings and parents.

If you lost a loved one in an accident someone else caused, you have legal options. First, you should contact a knowledgeable wrongful death attorney in your area who can help you decide the best course of action for your case. A compassionate wrongful death attorney can review the circumstances of the accident and determine your eligibility for filing a claim. If you are eligible, your lawyer can file the claim with the appropriate insurance company and pursue the wrongful death damages you and your family deserve.

If the insurance company does not compensate you fairly, your Denver wrongful death lawyer can file a lawsuit in the court system and, if necessary, take your case to a civil jury trial or binding arbitration hearing. Your lawyer will help you make the best possible decisions in your case, increasing your chances of favorable monetary recovery. Although financial compensation can never truly replace a lost loved one, it can help to bring about a sense of justice and closure for yourself and other surviving family members.

Deadline to File a Wrongful Death Claim

As with all personal injury claims, wrongful death claims are subject to a state statute of limitations. An eligible family member must file a wrongful death lawsuit within two years after their loved one’s death. A four-year statute of limitations applies to deaths that result from hit-and-run vehicular homicides, such as when a driver abruptly flees the accident scene.

The statute of limitations in a wrongful death claim is a hard-and-fast deadline. Therefore, if you fail to file your lawsuit on time or file even one day late, the court will bar you from recovering wrongful death damages. Therefore, you want to retain experienced legal counsel to handle your case as soon as possible after your loved one’s untimely death.

Your wrongful death lawyer can file a timely claim or lawsuit on your behalf and promptly begin negotiating with the insurance company—or litigating your wrongful death case in the court system to an efficient resolution.

Types of Accidents that Lead to Wrongful Death

A wrongful death claim arises when someone’s negligent or wrongful act causes another person’s untimely death.

Some of the most common bases for a wrongful death claim include:

  • Motor vehicle accidents: Where a negligent driver violates a rule of the road or engages in intoxicated or distracted driving, causing a fatal crash
  • Bicycle and motorcycle accidents: Where a negligent driver strikes a cyclist, often causing them to fall to the ground and suffer fatal injuries
  • Defective product malfunctions: Where a product manufacturer—or some other entity in the chain of product distribution—negligently assembles or designs a product, causing it to explode, malfunction, or otherwise cause a consumer to suffer fatal injuries when using the product correctly
  • Medical malpractice: Where a doctor acts unreasonably under the circumstances and fails to follow the prevailing standard of care, such as by botching a surgical procedure, leaving an instrument inside a patient’s body, misdiagnosing a patient, or failing to diagnose them altogether
  • Intentional acts: Where a person commits a wrongful act on purpose, such as a battery, that causes an individual to suffer fatal injuries
  • Pedestrian accidents: Where a negligent driver strikes a pedestrian on the sidewalk, at a crosswalk, or in a parking lot or parking garage, causing them to hit the ground and suffer fatal injuries
  • Premises accidents: Where a property owner or operator fails to maintain their premises in a reasonably safe condition—or fails to repair or warn about hazardous property conditions—causing the visitor to suffer fatal injuries, such as in a slip-and-fall accident or due to inadequate security on the premises

If someone you love suffered fatal injuries in an accident that resulted from another person’s negligence or intentional act, you should seek out experienced legal counsel to represent you right away. Your lawyer can meet with you to discuss the occurrence and the fatal injuries that the accident victim suffered. Your lawyer can then help you pursue the monetary compensation that you need in your wrongful death claim or lawsuit.

Potential Claimants in Wrongful Death Proceedings

Several classes of individuals may be eligible to file a wrongful death claim with the at-fault party’s insurance company. Only a surviving spouse is eligible to file a wrongful death claim during the first year after an individual’s death. However, in certain circumstances, the surviving spouse may give written permission for their children to file the wrongful death claim, or the surviving spouse may join the children in filing the claim.

If the deceased individual was not married at the time of their death, then the decedent’s children—or a designated beneficiary—are eligible to file the wrongful death claim or lawsuit.

During the second year after a decedent’s death, the following individuals can file a wrongful death claim or lawsuit:

  • The deceased individual’s surviving spouse
  • The decedent’s surviving children
  • The surviving spouse and the children
  • An eligible beneficiary and the children

If the deceased individual was not married at the time of their death and they did not have any beneficiaries or children, then the decedent’s parents can bring the wrongful death claim or file a lawsuit in court.

A knowledgeable and compassionate wrongful death attorney in your area can determine if you are eligible to file a wrongful death claim and, if so, can assist you throughout the process. After filing the claim, your lawyer can negotiate with the adjuster and pursue fair settlement compensation on your behalf.

The Burden of Proof in a Wrongful Death Claim or Lawsuit

​Who Can File a Wrongful Death Suit?In a wrongful death claim or lawsuit, the claimant has the sole legal burden of proof. The same is true in other personal injury cases that an accident victim files. Conversely, the at-fault individual or entity does not need to prove anything in a wrongful death claim.

To recover damages, a wrongful death claimant must show that the subject incident resulted from another individual’s reckless, negligent, intentional, or otherwise wrongful act. Moreover, they must show that as a direct result of the incident, the victim suffered fatal injuries. When a claimant can satisfy these legal elements, they may be eligible to recover various wrongful death damages—either during the settlement process or during litigation.

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How to File a Wrongful Death Claim with the At-fault Party’s Insurer

The wrongful death claims filing process begins when the claimant’s lawyer submits various documents to the insurance company adjuster. In most instances, the claimant’s lawyer will deal directly with the insurance company for the at-fault individual or entity.

Essential documents include copies of the decedent’s medical treatment records, medical bills, earning statements, police reports, incident reports, eyewitness statements, photographs of injuries, and photographs of the incident location.

Once the insurance company adjuster receives these documents, they will review the documents and determine whether to accept fault—or liability—for the subject incident. If the insurance company accepts fault, settlement negotiations may start.

In most instances, initial wrongful death settlement offers are far below the actual value of the claim. This is because adjusters want to try and wrap cases up as quickly and cheaply as possible. Therefore, they will start out low, hoping that the claimant is in a hurry to settle.

A knowledgeable wrongful death attorney in your area can negotiate with the adjuster—several times if necessary—and pursue a higher offer. During settlement negotiations, the adjuster typically increases their offer gradually, as the claimant’s lawyer gradually decreases their initial settlement demand.

If the wrongful death claim settles, it will end, and the case will not go any further. The wrongful death claimant will then need to sign a settlement release stating that they will not file a future claim or lawsuit arising from the same set of circumstances. However, if the parties reach an impasse, the claimant’s lawyer will typically need to file a wrongful death lawsuit in court. They must file this lawsuit within the applicable statute of limitations period.

Even after filing a lawsuit in court, however, the parties may continue their settlement negotiations. In fact, the case may settle at any point up until the trial date. However, filing a lawsuit does begin the litigation process, and the court will typically enter a scheduling order, establishing various deadlines for significant case milestones.

For example, the parties will usually need to complete discovery, during which time they answer written questions called interrogatories. They may also take one another’s depositions to find out more about the other side’s version of the case. In a wrongful death lawsuit, the defense attorney usually takes the claimant’s discovery deposition.

By the end of discovery, if the case remains unresolved, the parties may take the case to a civil jury trial. When a wrongful death lawsuit goes to trial, the jury will decide what, if any, damages to award the wrongful death claimant. The parties may also consider alternative dispute resolution mechanisms, like binding arbitration or mediation, as a means of settling their dispute. Your lawyer can help you determine whether a particular settlement offer is a good offer under the circumstances or whether litigation might be beneficial in your case.

Potential Damages in a Wrongful Death Claim or Lawsuit

If a wrongful death claimant can prove the various legal elements of their claim, they may be eligible for various damages.

Compensable damages in wrongful death claims and lawsuits include:

  • Compensation for burial and funeral costs
  • Future lost earnings if the claimant depended upon the decedent’s income for future support
  • The cost of medical treatment between the time of the incident and the decedent’s untimely death
  • Compensation for mental and emotional anguish
  • Compensation for loss of the decedent’s care, comfort, and companionship

Your lawyer can determine which of these wrongful death damages you’re eligible to recover in your claim or lawsuit. They can then assist you during settlement negotiations and at all legal proceedings to maximize the compensation you recover.

Call an Experienced Wrongful Death Attorney Today

If you lose a loved one due to someone else’s negligence, it is crucial that you have skilled legal representation in your corner as soon as possible. Representing yourself during a wrongful death claim or lawsuit can be a severe mistake.

This is because insurance companies routinely take advantage of self-represented claimants, assuming that they lack the necessary settlement negotiation and litigation skills to advocate for themselves effectively. Therefore, if the insurance company sees that you are self-represented, they will likely offer you far less than the actual value of your claim.

Remember that insurance companies nearly always have experienced legal counsel on their side. It’s better if you do too.

A knowledgeable Denver personal injury lawyer will understand the tricks and tactics that insurance adjusters routinely use to undervalue wrongful death claims. They can zealously advocate on your behalf during settlement negotiations and work to recover the total amount of damages you deserve.

If the insurance company adjuster refuses to offer you fair compensation, your lawyer can file a lawsuit and litigate your case, either at a civil jury trial, mediation hearing, or binding arbitration proceeding.

Finally, your lawyer can represent you at all in-court proceedings, advocate for your legal interests and pursue the maximum amount of damages available to you for your loss.

Lauren Varner, Personal Injury Attorney

Lauren is a Personal Injury Attorney. She is Colorado native who became involved with the field of personal injury long before she became an attorney. Lauren’s professional philosophy centers around good old fashioned hard work, producing quality work product, and treating others professionally, with dignity and respect at all times.

Awards and as featured on

Top 40 Under 40 National Trial Lawyers Top 40 Under 40 NTL American Institute of Personal Injury Attorneys 10 Best Attorney