A Video Explaining How to Deal With Wrongful Death Claims

The wrongful death acts in all states provide a statutory cause of action for damages suffered as a result of the decedent’s wrongful death to certain named beneficiaries, usually spouses, children, or parents. This is an independent cause of action belonging to these beneficiaries. Until recently, most jurisdictions used the so-called “pecuniary loss rule” to limit such recovery to the pecuniary loss—the loss of income and wage contributions that the deceased would have made had he or she lived—resulting from the deceased’s death. A plaintiff may recover damages for emotional distress flowing from a defendant’s negligence, notwithstanding the absence of physical injury. But these damages are recoverable only if the plaintiff has suffered a pecuniary loss and has suffered an injury to the person, albeit not physical.

This is being rejected by many courts to allow recovery of nonpecuniary as well as pecuniary losses. The defendant, or the defendant’s insurer, must attempt to predict both losses in evaluating a wrongful death case. The elements of damage recoverable in wrongful death cases are as follows:

pecuniary losses;
mental anguish;
emotional pain, torment, and suffering resulting from the deceased’s death;
loss of consortium;
loss of parent-child relationship (the positive benefits from the love, comfort, companionship, and society of the deceased child or parent);
loss of inheritance (while this would seem wildly speculative, some courts seem comfortable in allowing this as a provable and recoverable element of damage); and
punitive damages.
Punitive damages are available in many states for wrongful death cases if the wrongful death was caused by gross negligence or an intentional tort.

In addition to wrongful death damages, most states have a so-called “survival statute” which preserves to the deceased’s estate any claims the deceased might have had had he or she lived.

© 2021 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 52 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.

Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.

Over the last 53 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.

Go to the podcast Zalma On Insurance at https://anchor.fm/barry-zalma;  Follow Mr. Zalma on Twitter at https://twitter.com/bzalma; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – https://zalma.com/blog/insurance-claims-library/ Read posts from Barry Zalma at https://parler.com/profile/Zalma/posts; and Read last two issues of ZIFL here.