Choosing a Nashville Wrongful Death Lawyer
Choosing a Nashville Wrongful Death Attorney
Choosing a Nashville wrongful death attorney is never a simple matter, and when faced with this task following the death of a loved one it might be overwhelming. The death of a family member is one of the worse things that any of us ever experience. It’s happened to me, to you, to everyone eventually. But we want it to be something we can live with, accept, and understand. That’s not always the case.
When someone or something unnecessarily took a life of someone we hold dear, we all look for answers. Sometimes the answer is obvious, other times we come to the conclusion it was pointless, avoidable, and should never have happened. Often the person or company that took the life of our loved one makes excuses rather than accepting responsibility. Even worse, they find ways to blame others, including the dead, for what happened. Choosing and finding the right wrongful death attorney in Nashville can make a huge difference.
How Does One Pick A Wrongful Death Lawyer In Nashville?
I am a Tennessee Board Certified Civil Trial Specialist. What is a Board Certified Civil Trial Specialist? Tennessee, like many states provides that certain lawyers can receive special certification in specialized areas of the law. Attorneys who have earned the Tennessee Certified Specialist designation have achieved significant experience in a specific area of the law, maintained legal malpractice insurance, passed a written examination, attended continuing legal educational (CLE) seminars, and received positive references from other attorneys who are familiars with their practice and good character.
There are other national directories that rate lawyers by experience and past performance, and it makes sense to visit these sites and learn about making an informed choice. The two major resources for finding a good wrongful death lawyer are AVVO and Martindale-Hubble.
If you find yourself as one of those people who think they deserve an explanation and some accountability, read on.
What is Wrongful Death?
We think of our lost loved ones as victims, people who were killed – but if you talk to a lawyer they will use a specific legal term for this kind of legal claim called “Wrongful Death”. Those words don’t really describe what we have experienced, but it’s the term you should get used to if you want to talk to lawyers about this kind of case.
The loss of a loved one often has both personal and financial consequences. The law provides that we can demand compensation for what we have lost, but it’s surprisingly complicated when it comes to the “who, how, when and how much”.
There’s a lot to think about when this happens, and it can be complicated, which is why lawyers are almost always involved. It’s probably why you’re doing everything you can to figure it out on your own. Here are some possible answers to the questions you may be having, but your case may be different and we encourage you to talk 1 on 1 with an attorney who knows the law in this area to make sure. Cases in places other than Tennessee may have different rules.
Here are some things we’ll try and cover:
- Who can make a “wrongful death” claim for the loss of a loved one, and who is entitled to the proceeds of the claim?
- How much time do you have?
- What determines how much money the survivor(s) receive?
- What makes one case worth more than another?
- What happens when a lawsuit is filed?
Who can make a “wrongful death” claim for the loss of a loved one and/or recover a portion of the proceeds?
It depends on circumstances, but here are the basic rules.
- If the person was married at the time of their death, the wife has the right to bring the claim but has to share the proceeds with any of the deceased’s children.The surviving spouse has the right to bring a wrongful death action and recover damages. If there is a dispute between another family member and the spouse about who gets to file the lawsuit and authorize settlement, it’s generally the surviving spouse who wins.Separation or pending divorce do not change the surviving spouse’s rights to “control” the wrongful death claim. When a surviving spouse has not been on good terms with the deceased, or has been married just a few years you would think that might make a difference. It does not. However there is an exception to this strong rule.If a spouse “abandons” or “willfully withdraws” from the decedent for a period of two years before their death, then the surviving children may have the right to file suit and collect the proceeds, but this is not an automatic right and the children will have to get a judge to rule that the surviving spouse did “abandon or willfully withdraw” for the 2 years prior to death. This may mean a family legal fight among the surviving spouse and children.The surviving spouse’s share of the recovery depends on whether or not there are children. No matter what, the widow recovers a 1/3rd and the balance is divided equally among the surviving children (both minors and adults). If there are no children, the widow takes it all.
- If the person killed was not married but had children (minors or adults) at the time of death, the children will inherit the proceeds but a “personal representative” may have to bring the claim on their behalves.If someone who has been wrongfully killed was not legally married at the time of his or her death, but had a child or children (whether adult or minor), then the child or children are entitled to bring the wrongful death case and to recover damages. If the unmarried person who was killed had more than one child at the time of his or her death, then the children of that person, whether adults or minors, must share equally in the wrongful death recovery.When a parent or parents are killed, someone must act as the personal representative of the child(ren) in order to bring the case. The personal representative can be one of the adult children and acts like a trustee for the other child or children. When there is more than 1 child, they must work together regarding their wrongful death claim. Tennessee law does not allow each child to maintain a separate lawsuit. The personal representative may be a court appointed Administrator of the Estate, but not necessarily.
- If the person killed was an unmarried adult and had no children the surviving parents share the proceeds equally, and either of them may make the claim for wrongful death (or they may have a personal representative appointed to do so).If someone is killed and they have no children or spouse, the next of kin will often be the surviving parent(s), and if they are dead the surviving brothers and sisters. If the person’s parents were divorced at the time of the death the parents share the wrongful death proceeds equally.When an unmarried adult dies, either of the parents may file to probate the Estate and become the personal representative of the Estate in order to file the wrongful death claim, but that may not be necessary.
- If the person killed was under the age of 18, the parents (generally) share the proceeds equally and either of them can bring the claim for wrongful death (but both parents cannot have separate claims/cases)When a child is killed, generally the parents will share the proceeds of the wrongful death claim equally. It doesn’t make a difference whether or not the parents are divorced or who has custody, they share equally. Either parent has the right to file the wrongful death claim, but the proceeds are divided ½ to each parent.There is an exception to this rule that resulted from a case our firm handled years ago.A mother came to us after her teenage son was killed in a construction zone collision. The father of this young man had not visited or spoken to his son in years. He had not paid child support in years. He never called or sent birthday cards. When we became involved, we realized that this worthless father would get ½ of the proceeds. The mother was upset. To fix this we got the mother to agree to let us hire a lobbyist and attempt to change the law and make sure that parents who didn’t support or visit their children could not make a claim if their child was killed.We were successful for this mother and the Tennessee Legislature passed a law that provides “a parent who has intentionally refused or neglected to pay any support for a child for a two-year period, or for the life of the child, whichever is less, when subject to a court order requiring the payment of child support and who has intentionally refused or neglected to contact the child or exercise visitation during such period…” cannot recover damages for the wrongful death of the child (TCA § 20-5-107(c)). Good, worthy parents should not have to divide the proceeds of a child’s death with someone who did not demonstrate love or support for their child.It is also true that a parent cannot recover money for the wrongful death of the child until their child support arrearages, with interest, have been paid. This does not mean that they do not share in the proceeds of a wrongful death case over their child, they just have to pay what they owed.
How much time do you have (Statutory Limitations)?
Statutes of limitations are laws that set time limits on how long you have to file a civil lawsuit, for example, a personal injury lawsuit.
Another type of statutory time limit is a “statute or repose,” which limits the time within which an action may be brought without regard to the accrual of any cause of action. This is occasionally a factor in a motor vehicle accident where a defect in the vehicle is claimed to have caused the accident. It more commonly applies to product liability or construction accidents.
The statute of limitations on a personal injury or wrongful death case in Tennessee is one year in most cases, a relatively short time compared to many other states. The time begins to run on the date your claim arises or “accrues,” usually when the accident happened. In certain situations, the statute can be “tolled,” or extended, for example if the plaintiff is a minor or not of sound mind. Another reason might be that the defendant has filed for bankruptcy. As soon as the disability is lifted (e.g. the minor reaches the age of 18), the statute begins to run.
What are the damages that determine what the survivor(s) receive?
In Tennessee, there are two types of damages. The first is Economic damages. These damages are those that can be measured in money, like the following.
- Medical and hospital bills for the time from injury until death.
- Funeral or burial costs
- Income loss for the time from injury to death
- Future wage earning capacity (reduced by the amount the decedent would have consumed as part of the cost of living.) This is sometimes called the “Pecuniary Value” of the life.
There is no cap or limit on the amount of these damages. However most of the time these damages are limited due to the circumstances of the death and/or age and the income of the person killed.
The calculation of pecuniary value may include factors including:
- Life expectancy,
- Health and strength,
- The decedent’s capacity for labor and earning money through skill, any art, trade, profession and occupation or business,
- Personal habits as to sobriety and industry.
- The decedent’s probable living expenses if they had lived.
If the person killed is a high wage earner, the “pecuniary value” of their life may make their case worth substantially more than the death of someone dear to us. We all know that money is not the measure of who someone is, but in calculating this part of the damages in a wrongful death case, it’s all about how much money the person could make.
What Are Non-Economic Damages?
Non-economic damages are all the things that can’t be measured in money like:
- Pain and suffering
- Depression and mood disorders
- Post-traumatic stress disorder
- Mental anguish
- Loss of enjoyment of life
- Loss of cognitive function
- Relationship problems
- Sexual problems
- Loss of sensory function
- Appetite problems
- Loss of bladder and/or bowel control
- Language disabilities
- Behavior disorders
- Feelings of helplessness or uselessness
Fortunately, this second class of damages allows Tennessee juries to compensate survivors with damages for what is called “loss of consortium”.
Consortium damages is compensation for what most of us would call the real effect of losing someone who is dear to us. It includes loss of the affection, love, companionship, services, attention, guidance, care, protection, training (and even sexual relations in the case of a spouse).
So when a spouse dies, the surviving spouse may recover loss of consortium damages. When a parent dies, a child may recover loss of consortium damages for the wrongful death of a parent. When a child dies, the parent(s) may recover loss of consortium damages for the loss of a child. However there’s only 1 claim for loss of consortium in a case in Tennessee. All the survivors (whether they are parents, spouses, or children) share a single claim. If 3 children lose their father, they share a single loss of consortium claim (along with the wife if she is still alive).
Lastly, the law provides that wrongful death damages includes damages for the decedent’s pain and suffering from the time of injury to death. “Pre-death” pain and suffering can be difficult to prove because of the catastrophic injury that caused the death and the use of medications that render that render seriously injured patients unconscious.
Wrongful death cases in Tennessee are limited by “caps” passed by the Tennessee Legislature.
Although Tennessee has had a highly rated environment for business for years, legislators passed “caps” in wrongful death cases (to the great joy of businesses and insurance companies who backed the changes). These caps have a direct effect on what Tennessee families may recover for the death of a loved one. It should be noted that the legislature did not pass any limitations on what businesses can recover in their lawsuits (nor was there a requirement that insurance companies reduce premiums).
While there is no limit on “economic” damages (think lost income and medical bills), there is a cap on the real damages we experience when a loved one is killed. All of the losses for companionship, services, attention, guidance, care, protection, affection, love, training (and even sexual relations in the case of a spouse), regardless of who are loved one was, are capped at $750,000. That includes all of their pain and suffering too. There are a few exceptions. The most prominent one is if there are minor children left behind. Then the damage cap on non-economic damages increases to $1,000,000.
What makes one case worth more than another?
There is no formula for the value of a wrongful death case. Different cases may have very different values – not to the families involved, but under the restrictions of Tennessee’s wrongful death laws. We’re not recovering compensation for what we have lost, only what the law allows. Obviously income of the decedent can make a huge difference, as will the amount of medical bills and whether there was pain and suffering before death. Often this part of the case is about cold numbers. The good news is that, generally, a truly good person who lives for others and not just themselves will recover more than another person who did not.
What happens when a lawsuit is filed?
While some wrongful death cases can be settled, this usually happens when there isn’t enough insurance to really cover the loss. As an example, when there is only $50,000 of insurance and the defendant was clearly at fault, the case is likely to settle without filing suit. Cases that have any dispute about fault and enough insurance to pay for the loss may require you to hire an attorney and file a lawsuit. Once a lawsuit is filed, it will take an additional 2-3 years before the case is over. Sometime legal technicalities, appeals, and difficulties with the proof can make a case take longer than 3 years (although that is rare from my perspective).
Wrongful death lawsuits require time, money, and experts. It will take 10’s of thousands of dollars in expenses for most cases to be prepared for trial.
Generally the law firm you hire will make arrangements for paying these expenses, although it will come out of your money at the end. The biggest expense in most wrongful death cases is for the experts that are required to testify about different aspects of the case. As an example it is common to hire economists to analyze the wage earning capacity of the decedent, and the amount of “consumption” required for them if they had lived. What experts are needed, and how much they cost can vary widely. This is a call where you will have to rely on your attorney.
Finally, you have an important role in the case. Just as the character and values of your loved one make a difference, the same is true for you. When a survivor has problems with the law, when there are family disputes, when survivors spend more time focusing on the money than on their loss, those problems will affect what happens in the case. Cases take time and it is common for a family to let down their guard while a case is pending. Comments by family members while using Facebook and other social media are rarely helpful and can sometime destroy the value of a case.
The process of making a wrongful death claim can be difficult because you are reminded of your loss again and again. However, when an accounting is due for an unnecessary death, when the family’s future is at stake, then the effort is worth it.
The people on the other side of your claim have lawyers advising them, and they do this kind of work every day. You can’t really compete with them no matter how much you read about the subject. For any significant decision about a wrongful death claim, get professional advice.
The attorneys at The Miller Law Offices are ready to help you seek justice in your wrongful death case. Contact us today or speak with an attorney at 615.356.2000.