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Each state has different laws regarding wrongful death claims. The location of where a case is filed can have many advantages and disadvantage which can then affect the victims’ outcome.

In Missouri, a wrongful death claim is available when “a circumstance results in someone’s death; but if that someone had lived, they would have had a claim for damages.” [1] In general, this is a lawsuit a plaintiff can bring for a tort that resulted in someone’s death. [2]

Who Can Bring The Suit?

Missouri allows three categories of people to bring a wrongful death action. They are ranked by priority: a plaintiff can only sue under a lesser category if they do not fulfill the higher-ranking category. The first category includes the spouse, parents, children (both natural and adopted), or if the children are deceased, the child’s descendants. [3] If there are no individuals that qualify under the first category, then people in the second category can bring the suit. The second category includes siblings of the deceased or such siblings’ descendants. If there are no individuals from the first two categories that can bring the action, the court can then appoint a “plaintiff ad litem.” A plaintiff ad litem is an individual appointed by the court by the request of individuals who have legal heirs to the deceased. This may be an option because proceeds of a wrongful death claim aren’t subject to probate administration. [4]

If there is more than one possible plaintiff, either plaintiff can bring the suit as long as they can satisfy the court that they have diligently attempted to notify every possible party who could have a cause of action. [5] But any individual who falls under the proper category can intervene (join) in the action at any time. [6]

A personal representative (unless as a plaintiff ad litem selected by the court) is not allowed to file a wrongful death claim. However, they can bring a survival action. A plaintiff can plead both a wrongful death and a survival action but they are required to be pled exclusive of each other in order to prevent recovering for the same damage twice. [7]

What Damages Are Available In A Missouri Wrongful Death Claim?

Missouri statute 537.090 outlines which damages are available for a wrongful death suit. They include:

  1. Pecuniary losses suffered by reason of the death
  2. Funeral expenses
  3. Damages suffered by the deceased between the time of injury and the time of death.
    1. An example would be the pain and suffering the deceased could have maintained if they had lived.
  4. Reasonable value of:
    1. Consortium,
    2. Services,
    3. Comfort,
    4. Companionship,
    5. Guidance,
    6. Instruction,
    7. Counsel,
    8. Support, and
    9. Training

There are no limits on actual damages unless if the wrongful death action is based upon statutory medical malpractice. If that is the case, the damage cap listed in Missouri statute 538.210 applies. [8] Further, damages for “grief and bereavement by reason of death” aren’t a sufficient basis for recoverable damages.

In determining how much damages are awarded to the plaintiff, the deceased’s health, talents, life expectancy, habits, age, character, and earning capacity will be considered. Missouri law provides for various formulas to calculate damages for certain scenarios. [9]

  • If the deceased wasn’t employed full time and was at least 50% responsible for caring for disabled persons, minors, or elderly adults: the value of the care the deceased provided is equal to 110% of the state’s average weekly wage. [10] This is a rebuttable presumption. Therefore, this is the default way damages will be calculated unless a party produces evidence that it should be calculated a different way.
  • If the deceased was less than eighteen years old: damages are calculated based on the income of their parent(s). If both parents are employed, the damages will be based on the average of their incomes. This too is a rebuttable presumption.

Although they are not specifically labeled as punitive damages, the presence of “aggravating circumstances” usually has the same effect. The purpose of awarding this type of damages is to punish the defendant and to deter future conduct. These are only available in wrongful death claims if the deceased would have been entitled to punitive damages had they lived and survived the same tort which they died from.

What limitations are there on Missouri wrongful death claims?

The statute of limitations for Missouri wrongful death claims is three years. While some actions will toll (delay the start) for plaintiffs who have a disability (i.e. they are a minor or in prison) until that disability is lifted, wrongful death actions do not. [11]

Only one claim can be brought against the same defendant for the death of any one individual. Therefore, the same person can’t be sued for the death of the same person more than once. [12]

[1] Mo. Rev. Stat. 537.080. Available at this link.

[2] There are a few obscure exceptions that result from narrowly interpreted statutes. For an example see case Stiffelman v. Abrams, available at this link.

[3] Mo. Rev. Stat. 537.080(1).

[4] For more information see case Sullivan v. Carlisle available at this link.

[5] Mo. Rev. Stat. 537.095 available at this link.

[6] For an example see case Fitzpatrick v. Hannibal Regional Hosp., available at this link.

[7] Survival action statute- Mo. Rev. Stat. 537.020, available at this link.

[8] Available at this link. Note: statute is unconstitutional to the degree that it imposes statutory caps on common law medical malpractice claims. The statute is constitutional as it applies to statutory medical malpractice claims. See Dodson v. Ferrara.

[9] Mo. Rev. Stat. 537.090, available at this link.

[10] For how to calculate the state average weekly wage see Mo. Rev. Stat. 287.250, available at this link.

[11] For details see case Bregant by Bregant v. Fink, available at this link.

[12] Mo. Rev. Stat. 537.080(2), available at this link.

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