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. Collateral descendants (brother, sisters, aunts, uncles): No. Parent(s) of a deceased unmarried adult or minor who had no children: Yes.
Q: Who can file a wrongful death action and when?
A. During the first year after the 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.
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.
Q: Who gets the money?
A. The plaintiff’s 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.
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 of the death was the result of a felonious killing.
Punitive damages are recoverable if the plaintiff proves beyond a reasonable double 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 1980’s and afterwards 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.
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 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.
Dealing with the wrongful death of a loved one is always difficult. We are sensitive to the feelings and needs of the family while at the same time we are aggressive in holding the at-fault party accountable for their actions.
Give us a call and we will set up a time to meet with you personally to answer your questions and to discuss the path forward.