Frequently Asked Questions
Q: What is a wrongful death action?
A: A wrongful death action is a lawsuit for damages filed by the spouse (not ex-spouse) and/or heirs of a deceased adult or by the parent(s) of a deceased unmarried adult who had no children or by the parent(s) of a deceased unmarried minor who had no children against the person or entity that wrongfully killed the deceased.
Q: Who is an “heir” under the Wrongful Death Act?
A: Lineal descendants (children, grandchildren): Yes. [Can file]
Collateral descendants (brother, sisters, aunts, uncles): No. [Can not file]
Parent(s) of a deceased unmarried adult or minor who had no children: Yes [Can file]
Q: Who can file a wrongful death action and when?
A: During the first year after death: The spouse has an exclusive right to file. But the spouse may elect in writing to allow the heirs to join in the action. If there is no spouse, then the heirs may file an action immediately.
During the second year after death: The spouse and heirs have equal standing to file.
After the second year: The statute of limitations for wrongful death is two years, so the failure to file the wrongful death action within two years would bar all rights of recovery if the defendant asserted the statute of limitations as an affirmative defense.
Within a year or even less if the killer also died: Claims against the deceased killer’s estate have to be filed with the applicable probate time periods – which may be a year or even less. However, liability insurance coverage will probably still be available to be recovered.
This can be tricky territory to navigate, so having a knowledgeable Fort Collins wrongful death attorney on your side is imperative to insure everything is handled within its proper time constraints.
Q: Who gets the money?
A: The plaintiffs in the wrongful death action recover the money damages, but all qualified heirs are entitled to share in the damages even if they are not named in the lawsuit. Parents may recover damages, but the division of the money may be affected by divorce and/or separation agreements, orders, or issues. There are other situations that affect who gets the money and how much. A detailed evaluation of all potential payees must be done. The top wrongful death lawyer in Fort Collins can assist you in developing the list of potential payees and guide you in how much each person will receive.
Q: What damages can be recovered and how much?
A: Economic damages are recoverable. There is no “cap.” Economic damages include funeral expenses, loss of the deceased’s wages over his/her expected work life expectancy, less the deceased’s personal consumption, calculated to present value, and other pecuniary losses.
Non-economic damages are recoverable. The current inflation-adjusted “cap” is $341,250. Non-economic damages are for grief, sorrow, and loss of companionship.
Solatium damages are recoverable. The current inflation-adjusted amount is $68,250. If the plaintiff elects to pursue solatium damages, then the plaintiff does not have to provide evidence of grief, sorrow, and loss of companionship. The solatium amount is paid upon proof of liability. Solatium damages are not subject to reduction by the comparative negligence or pro rata liability statutes.
“Felonious Killing” damages are recoverable if the killing would be considered first or second-degree murder or manslaughter. An actual criminal conviction is not necessary. The Wrongful Death Act non-economic damages cap is not applicable if the death was the result of a felonious killing.
Punitive damages are recoverable if the plaintiff proves beyond a reasonable doubt that the defendant’s conduct was willful and wanton. The amount of punitive damages cannot exceed the amount of actual damages.
Other damage limitations: Colorado was cursed with tort reform in the 1980s and afterward in which severe limitations have been placed on the ability of injured persons to be fairly compensated for the injuries, deaths, and damages inflicted upon them and their families by negligent and reckless persons and corporations. For example, if the deceased was wrongfully killed by the State of Colorado or a subdivision of the state, then damages are limited to $150,000. There are also severe restrictions in medical malpractice and other areas. An experienced Fort Collins wrongful death attorney can help you determine any restrictions that may apply to your situation.
Q: Can there be more than one wrongful death action?
A: No. There can only be one wrongful death action filed. This is called the “one action” rule. All claims against all defendants must be brought in one action. If a second action is filed because, for example, an at-fault party was not included in the first action then the second action will be dismissed and the defendant in the second action will go free – not to mention that the plaintiff will not have recovered damages attributable to the second action defendant in the first action and that the first action defendants are liable only for their respective shares of fault and not for any fault of the omitted at fault party.
Q: Can medical expenses be recovered?
A: No, not in a Wrongful Death action. Yes, in a “Survival” action.
Q: What is a “Survival” action?
A: A survival action is a lawsuit filed by the personal representative of the deceased’s estate to recover the economic damages that accrued between the date of injury and the date of death. Lost wages and medical expenses are examples. Subrogation and reimbursement claims by hospitals, medical providers, health insurers, Medicaid, Medicare, and others must be taken into consideration.
Q: Can there be a wrongful death claim for the death of a fetus?
A: Yes, if the fetus was “viable” at the time the fetus suffered an injury that caused its death. This is a medical determination. Colorado law does not specify an arbitrary date of viability. The parents will have to present medical evidence that the fetus was viable.
Experienced Wrongful Death Attorney
Fort Collins wrongful death attorney Mac Hester has extensive experience in representing clients in wrongful death suits. It can be difficult territory to navigate, but our compassion and knowledge can help put you at ease and achieve your legal goals.
Give us a call to schedule a free consultation. If you can’t make it to our location for the consultation, we will come to you.