Wrongful Death

Wrongful Death

Representing a family member due to the wrongful death of a loved one is the most difficult type of personal injury case we have. Obviously, the emotional toll on you is inconceivable but there is an emotional toll on us as well. That’s why we do more than just represent you for your loved one’s wrongful death claim.  We want to minimize the stress you don’t need at this emotional time.

When someone is killed in an accident because of negligence, the surviving family is not only left with a devastating emotional loss, but many financial and other issues.  We are really here to help and not just with your wrongful death claim.

Whether the deceased was working or not, many bills will come in the mail ranging from ambulance and hospital bills to a cell phone bill to car payments, rent or mortgage, insurance and many other bills. You may or may not want to keep the cell phone activated for a while but you most likely will not have to pay any bills and we can keep collection agents from bothering you.  We can take care of these problems for you, at no extra charge, so you don’t have to deal with them during your time of loss.

If you want to download a copy of voicemail messages to or from a loved one from a cell phone or landline answering machine, you can use voicemailsforever.com. We’ll pay the fee for our clients.

If the deceased owned a car, we can help you with the vehicle finance agreement or lease and insurance issues.  We can also arrange to transfer ownership to you.

We will obtain a copy of the police report, autopsy report and certificate of death.  We can find out if your loved one had a safe deposit box or other assets you may not know about.

We will investigate thoroughly to find all possible people and entities who may be responsible. After we have identified the responsible parties, we don’t just stop after notifying their insurance companies. Next, we perform asset searches and umbrella insurance searches.

Damages which can be claimed

New York is one of the few states where a jury may not make an award for mental anguish or loss of companionship. In New York, pain and suffering of the deceased and loss of financial support are the largest part of compensation you are entitled to.

New York State allows the following types of compensation for wrongful death:

  • The deceased’s pain and suffering prior to death (we retain a medical expert to prove the amount of pain and suffering)
  • The deceased’s pre-accident or pre-impact terror (the fleeting moment when the decedent knows he/she is about to die)
  • Loss of financial support of the deceased, voluntary assistance and possible inheritance
  • The deceased’s medical bills related to the accident
  • Burial and funeral expenses
  • Punitive damages may be awarded if the accident was caused by a DWI – drunk driver or a driver on drugs

The “pecuniary injuries” (financial loss) caused by the death of a decedent who was earning income may be calculated, in part, from factors relevant to the decedent’s earning potential, such as present and future earnings, potential for advancement and probability of means to support heirs, as well as factors pertaining to the decedent’s age, character and condition, and the circumstances of the distributees.  Gonzalez v New York City Hous. Auth., 77 N.Y.2d 663, 572 N.E.2d 598, 569 N.Y.S.2d 915

Individuals without a spouse or children may not be financially “valuable” in the eyes of New York State law but financial loss can be proven. In the case of a decedent who was not a wage earner, “pecuniary injuries” may be calculated, in part, from the increased expenditures required to continue the services she provided, as well as the compensable losses of a personal nature, such as loss of guidance. Gonzalez v New York City Hous. Auth.

When lawyers do not properly prepare the evidence needed, they often settle these cases for far too little.  It is vitally important to hire the right expert witnesses to prove that the deceased had some time of pain and suffering and/or terror, even if only for a few seconds and that there was a financial loss.

Is it Wrongful Death or Pain & Suffering?

It’s a very confusing topic, even for lawyers!  Do you sue for wrongful death or sue for personal injury pain and suffering?  The most confusing part is at the end of the case when the settlement money is ready to be distributed.  Should the money be paid for wrongful death or pain and suffering?

As mentioned above, NY state doesn’t have a wrongful death statute like other states because in New York, you can only get money for the reasons in the bullet list above but you cannot get money for mental anguish. However, the Surrogate’s Court will look at the papers submitted by the lawyer to determine whether the money should be distributed pursuant to wrongful death or pain and suffering.

When the settlement money is ready to be distributed, there is a big difference between paying the money for wrongful death and pain and suffering

Settlement money paid for wrongful death

If the settlement money is paid for wrongful death, the money bypasses the estate and is paid to family members according to statute and ordered by the Surrogate’s Court.

Settlement money paid for pain and suffering

If the settlement money is paid for pain and suffering, the money is paid to the estate. If the accident victim died without a will, an administrator will have to be appointed (we pay an estate lawyer with our own money and provide this service to you for free). If the accident victim died with a will, the will names an executor. Either with or without a will, an estate has to be created.

If the estate owes money for debts, the settlement money will be used to pay the debts of the estate. The settlement money will be distributed to the persons included in the will or pursuant to New York State statute for people who die without a will (this distribution will be different than the statutes pertaining to wrongful death).

Asset Search

We perform an asset search to determine if there are any assets which may be needed to satisfy a judgment for wrong death due to negligence.  We pay for access to a database which will show real estate owned, cars, boats, planes and other assets.  We also get a report of bank accounts.

Umbrella Insurance Search

We also perform an umbrella insurance search to determine if there is any additional insurance coverage which may be available to satisfy a judgment for wrong death due to negligence.  There is more than one lawyer who has found that an insurance company failed to disclose the existence of umbrella insurance.  The only way to know for sure is to search the national Claims Loss Underwriting Exchange.

Legal Fee for Wrongful Death

Our legal fee to represent you for the wrongful death of a loved one is 1/3 of what we collect for you. There is no fee if we do not collect money for you and our legal fee is paid at the end of the case out of the money we collect.  We will advance case expenses which are paid back at the end of the case and you are not responsible for any case expenses unless we collect money for you.  We provide assistance for taking care of bills coming in the mail, transfer of car ownership and other issues including estate work and guardianship proceedings if there are children are all included in our 1/3 legal fee.

NO Legal Fee for Estate Work for Wrongful Death

We can save you thousands of dollars in legal fees.

If the deceased died without a will, an Administrator (male) or Administratrix (female) must be appointed to be in charge of the estate. Where more than one person wants to be in charge of the estate, there can be co-administrators/trix.  If the deceased died with a will, the will must be probated.  If there are children, guardianship proceedings will be required.

This was taken from a template letter used by another well-known personal injury law firm, which they send after the client meets with them:

In order to proceed with your case, we will need to have an estate representative appointed.

As such, we suggest that you retain an estate attorney, [name removed], an expert in estate matters, who often assists our office with estate proceedings.  We have given Mr. X your telephone number so he may contact you to discuss your case.  You can, of course, contact him directly at (XXX) XXX-XXXX to ensure that he has all the appropriate information to complete this process.

Of course, when you contact their estate attorney, you will find the legal fees can be as much as $10,000 or more!

We really do care about our clients so we pay an estate lawyer out of our pocket to perform the estate legal services necessary for a wrongful death case, in the event that someone is killed and the family doesn’t want to hire an estate lawyer.

We do not add the estate fees to your bill at the end of your case!

We use an estate attorney who does estate work in New York Surrogates Courts.  Of course, you can use your own estate attorney if you want to.

Why You Need to Call a Lawyer Quickly

The statute of limitations in New York for wrongful death is 2 years from the date of death.  This is important because it is one year shorter than the 3 year statute of limitations for personal injury. Most attorneys don’t want to accept a case just before the statute runs because it can take a few months for proper investigation, so the statute is really less than 2 years. Additionally, it’s important to investigate aspects of the accident immediately.

Call Attorney Phil Franckel direct days/nights/weekends for a free consultation