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Individuals come to our office at the worst time of their lives.  Whether it be due to medical malpractice, a semi-truck accident or whatever the cause may be, a loved one has just passed away due to someone else’s negligent actions. Naturally, the family of the decedent wants answers when a tragedy occurs.  They want answers as to why an accident occurred, how it occurred and how it can be prevented from occurring to another unsuspecting innocent family.  Part of every good wrongful death lawyer's job is to ensure that the family gets the answers to these questions in addition to financially stability.  When pursuing answers for the family the wrongful death claim begins and there are several stages to any successful claim.

1. Determining the Heirs:   The first step in a claim is to determine who the appropriate heir to assert the claim is.  In Missouri, this is determined by Missouri statute 537.080. To determine the appropriate heirs to a claim, things like whether the decedent was married and whether they had children will be considered among other considerations.  It will be up to the heirs to engage a wrongful death lawyer.  Many times questions of attorney fees will be a concern at this stage.  Heirs may not have the ability to pay a lawyer but are still wanting to pursue a claim.  Nearly all wrongful death lawyers accept cases on a contingency basis.  In other words, heirs never pay an attorney unless the attorney wins their case.   After the appropriate party to pursue the claim is determined, next is to start an investigation to determine who all could be responsible for the cause of the wrongful death.

2. Investigation of the Claim:   Investigation of a claim is one of the most important parts of a wrongful death lawyer's job.  Often a lawyer may hire other professionals like a private investigator, accident reconstructionist, medical expert or other expert relevant to the claim during the investigation stage of a claim.   The investigation is largely going to center around the type of claim.  In a medical malpractice scenario, there could be many health care providers and the investigation will help determine who all was involved and who was at fault. In a construction site accident scenario, there could be numerous contractors and subcontractors and the investigation will determine at the involvement of each. For a truck wreck scenario, the trucking company, the driver, and various levels of leases will need to be investigated for the claim. The investigation to find the responsible parties should be done as soon as possible.  Individuals that are responsible for the death of another my try to destroy evidence or hide facts relevant to pursuing the claim.  The quicker a party retains a lawyer to start uncovering the cause of the death the better for the claim and the better for obtaining answers as to why the death occurred.

3. Determining Damages:   Damages are another way of saying, "What can the wrongdoer in a claim do to make the family whole again?"  In reality, no one can bring back a lost loved one. No one can take the place of a father reading a bedtime story to their kids; No one can kiss a child's skinned knee after they have fallen like a mother can.  No one can make a family whole again.  When someone is killed due to another’s reckless actions a lawyer is left with limited ability to really make a family whole again.  All a lawyer can really do is seek monetary compensation from the wrongdoer and make it so costly that the wrongdoer thinks long and hard about ever engaging in the type of reckless conduct that fractured a family and cost someone their life.  Each state has a specific law that lays out the damages allowed when pursuing a wrongful death claim.  In Missouri, the statute is for determining damages is 537.090. If you are experiencing the tragic loss of loved one because of someone other party’s carelessness or negligence and you wish to discuss your potential claim, please call Roth Davies, LLC.

What is the Law in Missouri on Wrongful Death Claims?   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.” In general, this is a lawsuit a plaintiff can bring for a tort that resulted in someone’s death.

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. 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.

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. But any individual who falls under the proper category can intervene (join) in the action at any time.

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.

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. (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. 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.

  • 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. 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 time 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.  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.