How Does The Law On Wrongful Death Work In Missouri?
The law varies by state and even neighboring states can have vastly different laws when it comes to wrongful death claims. The advantages and disadvantages of where a case is filed can be numerous and have a dramatic effect on the outcome for the victims.
In Missouri, wrongful death is available when a circumstance results in someone’s death; but if that someone had lived, they would have had a claim for damages. In general, it is the action a plaintiff can bring for a tort that results in someone’s death.
Who Can Bring The Suit?
There are three categories of people that can bring a wrongful death suit in Missouri. They are ranked by priority: a plaintiff may only sue under the second category if he does not fulfill the first category, and so on. The first category includes the spouse, the father or mother, children, or, if the children are dead, the descendants of the children. This includes both natural and adopted children. If there are no people in the first category that can bring the wrongful death action, then people in the second category can bring the action. This includes the siblings of the deceased or such siblings’ descendants. If there is no one from class one or two entitled to bring the action, then the court may appoint a “plaintiff ad litem.” A plaintiff ad litem is someone appointed by the court on the request of the people who have a legal heirs of the deceased. This may be an option because the proceeds of a wrongful death action are not subject to probate administration.
If there are more than one possible plaintiffs, whichever plaintiff may continue to bring the suit however she wants as long as she can satisfy the court that she has diligently attempted to notify every party who might have a cause of action. But any person who falls in the proper category can join in the suit (“intervene”) at any time.
A personal representative (unless as a court-selected plaintiff ad litem) cannot bring a wrongful death action. But a personal representative of the deceased can bring a survival action. A plaintiff can plead both a survival action and a wrongful death action, but they must be pled as mutually exclusive to prevent getting recovery for the same damage twice over.
What Damages Are Available In A Missouri Wrongful Death Claim?
Based on Missouri statute 537.090, damages available for wrongful death actions include:
- Pecuniary losses suffered by reason of the death
- Funeral expenses
- Damages suffered by the deceased between time of injury and time of death. An example would be the pain and suffering that the deceased could have maintained an action for had he lived.
- Reasonable value of:
- training, and
There are no limits on actual damages except if the wrongful death claim is based on statutory medical malpractice. If this is the case, the caps damage caps listed in Missouri statute 538.210 apply. Also, damages for “grief and bereavement by reason of death” are not a valid basis for damages.
In determining the amount of damages to award the plaintiff, some relevant considerations include the deceased’s health, life expectancy, talents, age, habits, character, and earning capacity. Missouri provides several formulas to calculate damages in specific circumstances.
- If the deceased was not employed full time and was at least fifty percent responsible for caring for minors, disabled persons, or elderly adults: the value of the care the deceased provided is equal to 110% of the state average weekly wage. This is a rebuttable presumption, meaning that this is the default way damages will be calculated unless someone produces evidence that it should be decided another way.
- If the deceased was under eighteen: damages are calculated based on the income of the parent or parents. If both parents work, the damages are based on the average of their two incomes. This is also a rebuttable presumption.
Although not explicitly called punitive damages, the presence of “aggravating circumstances” generally has the same effect as punitive damages. The purpose of awarding damages based on aggravating circumstances is to punish the defendant and deter future wrongdoing. In wrongful death actions, they are only available if the decedent would have been entitled to punitive damages if he had lived and survived the same tort.
What Limitations Are There On Missouri Wrongful Death Claims?
Missouri statute sets the statute of limitations for wrongful death within three years. While with some actions the statute of limitations “tolls” (waits to start) for plaintiffs with a disability (for example minors or persons in prison) until the disability is lifted, this is not the case with wrongful death actions.
Only one action may be brought against any one defendant for the death of any one person. The same person cannot be sued more than once for the death of one person.
 Mo. Rev. Stat. 537.080. Available at: http://www.moga.mo.gov/mostatutes/stathtml/53700000801.html.
 Mo. Rev. Stat. 537.080(1).
 For more information see case Sullivan v. Carlisle available at: https://casetext.com/case/sullivan-v-carlisle?page=513.
 Mo. Rev. Stat. 537.095 available at: http://www.moga.mo.gov/mostatutes/stathtml/53700000951.html.
 For an example see case Fitzpatrick v. Hannibal Regional Hosp., available at: https://www.courtlistener.com/opinion/2462668/fitzpatrick-v-hannibal-regional-hosp/.
 Survival action statute- Mo. Rev. Stat. 537.020, available at: http://www.moga.mo.gov/mostatutes/stathtml/53700000201.HTML.
 Available at: http://www.moga.mo.gov/mostatutes/stathtml/53800002101.HTML. Note: statute is unconstitutional to the degree that it imposes statutory caps on common law medical malpractice claims. The statute is constitutional as it applies to statutory medical malpractice claims. See Dodson v. Ferrara.
 Mo. Rev. Stat. 537.090, available at: http://www.moga.mo.gov/mostatutes/stathtml/53700000901.html.
 For how to calculate the state average weekly wage see Mo. Rev. Stat. 287.250, available at: http://www.moga.mo.gov/mostatutes/stathtml/28700002501.HTML.
 For details see case Bregant by Bregant v. Fink, available at: http://www.leagle.com/decision/19871061724SW2d337_11028/BREGANT%20BY%20BREGANT%20v.%20FINK.
 Mo. Rev. Stat. 537.080(2), available at: http://www.moga.mo.gov/mostatutes/stathtml/53700000801.html.
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