Wrongful death claims in North Carolina can be very restrictive when determining who may file a lawsuit. Wrongful death is not an injury that is typically claimed with a respondent insurance company, but rather applies when a court awards damages to plaintiffs based on the material evidence of a fatality case. Some wrongful death actions must actually be filed against the primary negligent parties after their insurance coverage has been maximized and paid. This can create an issue in some situations due to compensation collection difficulties. But, determining who can sue is typically the first step in filing a wrongful death legal action.
North Carolina Wrongful Death Law
The first assessment by the court will be if a potential wrongful death claim exists. Depending on the material case facts, any evidence of personal fault could mean the case cannot be won in the state of North Carolina due to the pure contributory negligence law. However, there could also be extenuating factors that contributed to the death that may establish a potential case. State law is also explicit in determining who can actually file the legal action. The only individual who can file is the person who is assigned by the court as the personal representative of the estate. This process can present legal technicalities that wrongful death lawyers will be focused on from the beginning, including any statute of limitations issues when the death occurred well after the causing injury.
Determining an Estate Representative
Estates that are subject to probate will typically have a personal representative assigned who also has standing to file a wrongful death action. For victims who were married, it is usually the spouse who has immediate standing. For those who are unmarried, the standing to sue and the actual victims are not always the same, especially if the decedent has minor dependent children. A wrongful death lawyer can also serve as the family representative in certain cases. Any personal injury lawsuit associated with the wrongful death case will be the property of the decedent estate, which means it is a separate legal action from the wrongful death claim. Proceeds from the wrongful death claim are considered property of the family in North Carolina, and many times it is best to have the same wrongful death lawyers representing both cases.
Order of succession
Beyond any legal spouse who will automatically be considered the estate representative, the order of standing assigned within the family goes next to dependent children. Next assignment would be to parents if they are still living. In cases where the victim decedent is a minor child, personal representative status automatically applies to the parents or legal guardian unless there are extenuating circumstances preventing the assignment. Last on the list are siblings and then the closest living relative if there are no siblings. The wrongful death lawyers who are handling the case will essentially be legal counsel for the estate representative.
Potential Additional Victims
It is also important to remember that dependent children from former marriages can also be entitled to share in the proceeds of the case, and they can have their own attorneys representing their interests. It is legal technicalities such as this that can make any wrongful death legal action a complicated matter, and places emphasis on the importance of having experienced wrongful death lawyers handling the case from the start. Wrongful death claims are always defended vigorously because the proceeds can include punitive damages that all defendants want to avoid. This reluctance to be assigned punitive awards by a sympathetic jury can be significant leverage in arriving at a settlement before a trial ever begins, making the decision to retain the right wrongful death law firm for the case even more important.
Contact Our Law Offices
Our attorneys have a long track record of representing wrongful death cases, and our main focus is always on maximized compensation for our clients. Call our offices today and let us conduct a full investigation into your wrongful death case options. Call us at 1-800-ACCIDENT or use the link below to schedule a free consultation.