friends-on-facebook-funeral

It’s called “wrongful death”. Maybe it should be called “negligent death” or “premature death”. We’re all going to die, but what would you give for that one extra day? Or, as the old Gospel song says, “Everybody wants to go Heaven, but nobody wants to go now.”

State laws define what claims people and their estates have after they die. There are “survivors’ claims”, and “surviving claims”. Surviving claims are the claims the deceased had which belong to his or her estate. Survivors’ claims are the losses suffered because you loved or were dependent on somebody, and that person was injured and died. In Oklahoma the pertinent laws are 10 OS 1051 to 10 OS 1054.

Here’s the complicated part, if that isn’t confusing enough already. Some parts of a wrongful death claim are assets of the deceased’s estate while some parts of it belong to the survivors for their losses caused by the death. The funeral expenses, medical expenses, and pain and suffering of the deceased belong to the estate, to be distributed according to the laws of “descent and distribution”. However, the parents, spouse, and children of the deceased have their own claims, which are for the grief, loss of relationship, and loss of support they suffer as a result of the death.

Let’s say you love your twin sister Jean and she is killed in a car wreck. You are her only surviving sibling. Your mom is alive, but your dad has passed. Your sister had two kids, who are now adults. After she raised her children she got divorced.  Later, she met and married Bob, and you don’t think too much of Bob.  Your mom and Jean’s kids don’t like him either.

I have some bad news for you. Siblings are not entitled to recover for grief or loss of relationship of their brother or sister who is negligently killed by somebody else. The parents, children, and spouse of the deceased have recourse for grief, loss of relationship, and loss of support. Brothers and sisters, however, have no claim no matter how close they were, or even how dependent they were, on the deceased. Only your mom, your sister’s kids, and her husband Bob would be entitled to recover. Adopted children have a right to compensation for loss of a parent. Stepchildren do not, even if they called Jean “Mom” and she was the one who raised them.

Then there’s the issue of who can bring the claim. By statute, it can be pursued by a personal representative, or if no “P.R.” has been appointed, by the next of kin. Your sister’s next of kin is her husband Bob. Usually the spouse will be appointed as the personal representative (Executor or Executrix if there’s a will, Administrator or Administratrix if there’s not a will). However, Bob can bring the claim as “next of kin” if a probate has not been opened. That person has an obligation to put forward and represent the claims of ALL survivors of your sister, even if the kids and Bob, or your mom and Bob, don’t like each other. This is because you cannot “split a cause of action”. The defendant who caused the wreck has a legal right to defend only one case, even if there are multiple claims caused by the death.

So, it’s complicated. Often there is jockeying to see who can hire a lawyer, get to the courthouse first, and get appointed as Personal Representative so they can get control of the lawsuit. This is a shame, because ultimately everybody needs to be in the thing together anyway.

For example, I represented the father of a teenager who committed suicide in a pediatric psychiatric ward while the child was on suicide watch. Suicide watch means there is required to be a staff member within arm’s reach of the patient at all times, but a staff member violated doctor’s orders and shut the young man up in a room alone after chewing him out for a minor disciplinary infraction. And, he hanged himself.

The parents of the child were divorced and the mom had sole custody. She hired lawyers, got appointed as Administratrix of the Estate, and filed a wrongful death lawsuit on behalf of herself. The dad came to me because he didn’t think his interests were being represented. I filed a Motion to Intervene, claiming that Dad also had a loss and had a right to be a party to the lawsuit. Mom’s lawyers objected, and the judge denied our motion to join the case. I appealed that decision and about a year later the appeals court ordered the trial judge to allow Dad to be made a party to the case, determining that it was “intervention as a matter of right”, not discretionary, since otherwise there was no way for my client to assert his claims for grief over the loss of his son.

There’s a side story here. During the appeal, Mom’s lawyers had essentially done nothing to prosecute the case even though a nurse and another staff member had been disciplined by the nursing board for dereliction of duty. In the meantime, Mom and Dad had been talking, and he was telling her about what was going on in the case because I had kept him informed, and her lawyers had not. She said: “You mean you can call your lawyer and he takes your calls?” “You say your lawyer filed a Motion to get the case set for trial?” Stuff like that. So, she fired her lawyers and hired me. I got a written sharing agreement between the two parents to divide the proceeds of any compensation equally and prepared the case for trial. We settled it at mediation and the hospital’s lawyers apologized to the parents for the loss of their son. Unfortunately I still had to share part of my fee with the previous lawyers, but got the happy satisfaction of doing a service for both parents and earning a pretty decent fee in the process.

It often happens in a wrongful death claim that some family members hire separate attorneys to make sure their separate interests are represented. The Personal Representative has control of the case and makes the decision whether to accept or reject a settlement offer. If the case is settled, or it is tried and a judgment is collected, a judge has to approve the settlement and distribution of funds. Funeral expenses go to whoever paid the funeral expenses. Medical expenses of the injury and illness are paid. The estate’s attorney fees and expenses are approved and awarded to the lawyers for the estate. If there was conscious pain and suffering, that is distributed according to probate law. The remainder is compensation for the survivors. If they can’t agree on who gets what, the judge will hold a hearing and distribute the money to Bob, Jean’s kids, and Mom according to the evidence about their relationship, grief, and loss of support. Here again, it’s better if everybody agrees, because if they have to hire lawyers due to conflict with each other some of the money will just go to additional attorney fees and everybody will ultimately get less.

I guess I should say a quick word here about probate. Probate is a proceeding to collect the assets, pay the debts, and distribute the remainder of the deceased’s assets. If there’s a will, it generally goes according to the terms of the will. If not, it’s according to the laws of descent and distribution. I mentally checked out of that part of law school, so probably shouldn’t say much more on that subject.

However, if the only reason for doing a probate is to appoint a person to prosecute a wrongful death lawsuit, we often appoint a “Special Administrator” to open a probate for the sole purpose of prosecuting the wrongful death claim. If the person who caused Jean’s wreck also died, Jean’s lawyers can actually appoint somebody of their own choice as Special Administrator of the deceased defendant’s estate in order to have somebody to sue, because you can’t actually sue a dead person and if their family didn’t open a probate you have to do it in order to pursue the claim.

Feelings of loss, pain, and anger run high when we lose someone we love. Tangled relationships can leave a heck of a mess when people pass. In Jean’s case, perhaps her kids and your mom really dislike Bob and don’t think he loved Jean or treated her right – or, that he took Jean away from them and controlled her or used up her money or cheated on her or, you know, whatever. I remember representing the family of a college student who died in a tragic accident caused by a defective dumbwaiter. His sisters and mom hired me. He was estranged from his dad. I had to explain to his sisters and mom that his dad still had a claim, and that he would be entitled to prove his loss and grief even though he hadn’t supported his son or kept in touch with him for quite a few years. It may not seem right that the “deadbeat Dad” had a claim and the sisters did not, but that’s honestly the way the law works.

Sometime in life we’re all going to experience loss. The problem with wisdom is you have to suffer so much to get it. Hiring a lawyer and prosecuting a wrongful death claim is a difficult decision, because prosecution of the case may take a couple of years and I’ve learned that being involved in the lawsuit can actually interfere with the grieving process and prolong it – it keeps the wounds open, so to speak. On the other hand, survivors often believe it is their obligation to their deceased family member to pursue a claim on behalf of the memory and respect they have for the person who died and the responsibility of the party they believe caused the death. I think a lawyer who is consulted about such a case has a responsibility to advise potential clients that these are complex matters, not to be entered into lightly.

But then, in one way or another, all personal injury claims are complex matters not to be entered into lightly. Writing this particular blog has reminded me of many people: the widow whose road-crew husband had been killed by a speeding truck in a construction zone, who was at the scene standing on the road weeping and screaming at passing traffic when I went to photograph and see the scene; my friend Dianne, whose son was killed in a car wreck at the age of 17 the day after Christmas while going to get his family a pizza; Eileen, who died as a result of complications of chemicals injected into her HVAC ducts by an idiot termite treatment company; that poor kid in the hospital ward, already troubled and in psychiatric misery; and others. It’s challenging to care for these people but still maintain sufficient emotional boundaries to be able to be an effective and objective lawyer for those who passed, and those whom they left behind.

If I can be of assistance to you, you are welcome to email me at gregh@fylaw.com.