Wrongful death is a personal injury claim to some extent, but the elements of the claim differ from a negligence injury legal action in North Carolina. There are distinct differences regarding who can file and what can be claimed as well as the amount of time that can lapse before the issue is brought to court. Specific rules apply for each type of case, and it always takes an experienced wrongful death attorney in North Carolina in order for a settlement to be reached or to take the case to trial. Wrongful death is actually a form of punitive damages case that is not intended as recovery for the decedent, but rather for the loved ones and family that they leave behind. The primary similarity for both is the issue of negligence, but the level of negligence must be more significant in a wrongful death claim even though total fault for an injury must be proven in North Carolina for a successful personal injury claimant to be awarded financial damages. In fact, the contributory negligence rule applies in wrongful death claims as well.
Standing to File a Claim
The standing to file a personal injury claim is almost always assigned to the injured victim. Sometimes someone can file for them on their behalf when they are incapacitated. The same rule applies in wrongful death, and the proceeds are intended as recovery for the immediate family. The legal spouse and/or the children of the decedent are first in line for standing. In situations where both parents have died, the court will decide who has standing and if the potential for a legal action exists. The contributory negligence rule will determine this ruling. The contributory negligence rule in North Carolina applies for wrongful death just as in personal injury, so if a decedent is denied a personal injury lawsuit, the potential for a wrongful death claim ends there.
Damages from a wrongful death claim are intended as financial damage recovery for the immediate family. They can include burial expenses as a pecuniary damage element along with demands for financial recovery for loss of consortium for the spouse. For the children, there is also an allowance for loss of financial support until they reach adulthood and loss of a relationship with a biological or guardianship parent. There may also be an allowance for mental anguish associated with the case along with punitive damages based on the level of negligence exhibited by the respondent party according to material case facts. The personal injury claim evidence can have a major impact on the wrongful death claim even though the damage elements for medical bill recovery, lost wages when they apply, and general damages for pain and suffering are associated with the decedent estate. Lost income may also be an element of a wrongful death claim, and actually, it is better if included in the wrongful death action because it protects the assets from potential attachment in probate when the estate is brought to court. The proceeds are property of the surviving family and not considered property of the primary decedent.
Statute of Limitations
The statute of limitations with respect to the filing window for bringing a claim differs as well as other specifics. A personal injury claim in North Carolina must be brought within three years while a wrongful death claim must be brought within two years. This can complicate the whole recovery process in a situation where both apply. It also makes it very important to consult with a wrongful death attorney as soon as possible after an accident that produces injuries that could be life-threatening over the long run.
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It is always essential to have an experienced attorney who is knowledgeable in North Carolina law when filing either a personal injury or a wrongful death claim in the state. The laws are much different than in other states, and wrongful death cases typically cannot be negotiated until after formal litigation is filed. The results of a personal injury case can end the chance of a wrongful death claim when the deceased plaintiff is even 1% at fault for the accident that produces their injuries and eventual death.