How Is the Amount of Damages Determined in a Wrongful Death Claim?
The amount of damages determined is entirely based on a case by case basis. Each case stands on its own merit. The facts are always different when I am reviewing each case. We need to determine both the economic and what the non-economic damages would entail. For example, those are things such as, consortium, companionship, comfort, guidance, or support. What I look at is the nature of the physical, emotional, and psychological relationship involved for everyone. Each human relationship is different, and I try to analyze what would have been the physical, emotional, and psychological side that a person has with the deceased.
What Are the Economic Damages That Survivors Are Entitled to in a Wrongful Death Claim?
They are different for survivors in a wrongful death claim. They are allowed to recover any medical expenses that the decedent incurred before passing away. Funeral expenses and any lost wages or loss of income that the beneficiary suffered as a result of the death would be the economic damages. The harder issue is to determine what would be the non-economic damages.
Are Punitive Damages Ever Recoverable in a Wrongful Death Claim?
In Missouri, you are allowed under the right set of circumstances to pursue a claim for punitive damages. In Kansas, there are no punitive damages offered. However, the punitive damages are recoverable as part of what is called a survival action and that is for any pain and suffering that loved ones experienced before someone passes away. You are able to assert a punitive damage claim for the survival action; you are not able, in Kansas, to pursue a punitive damage claim for wrongful death.
What is The Statute of Limitations for Filing a Wrongful Death Claim in Kansas and Missouri?
Generally speaking, in Kansas, the statute of limitations on a wrongful death claim is two years where in Missouri it is three years.
How Are the Damages Awarded in A Wrongful Death Lawsuit Divided Amongst Multiple Heirs?
Each case for each state is different, but in Kansas and Missouri, both states are governed by their respective statute, and the statute lays out which heirs are entitled to recover. From there, the court looks at the nature of each relationship. They look at whether somebody was dependent on a particular person for such things, such as economic care or economic benefit, and determine which heir and how the money will be apportioned. Most of the time, the family comes in as a collective group.
Generally, in my experience, when somebody passes away, the heirs come in as a family. I will sit down and speak with them about these topics, including specifics as to how the proceeds from any claim or lawsuit would be apportioned between them. Most times, an agreement is made upfront as to how the proceeds would be distributed or split between each of the heirs. If that is not a viable agreement, then the courts will take a look at the nature of the relationships between the heirs and the decedent.
Do The Heirs Ever Hire Separate Attorneys in A Wrongful Death Suit?
Yes, many time heirs will retain their own personal attorneys. If there is not an acceptable agreement amongst the heirs, then one attorney may not represent all of them, and they must all come to an agreement to the terms of the claim. One attorney cannot properly protect the rights of everybody. If they are representing everyone, and none of the heirs are agreeing with each other, it causes a conflict of interest. Then the process is handled by only representing their respective client. It does happen from time to time where heirs have separate attorneys. That, fortunately, has not been my experience on most cases.
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