Wrongful Death Actions

By November 10, 2014Uncategorized

By Jacob F. Kimball
Managing Attorney, Civil Division
The Gasper Law Group, PLLC

Unfortunately, the wrongful acts of another often rob family members and friends of their loved ones. In such cases, you may be able to bring a wrongful death action to receive compensation for your loss. Automobile accidents are a common cause of wrongful death, but wrongful death actions can arise from many types of intentional or accidental acts.

The statute of limitations for wrongful death actions is two years from the date of death, regardless of when you actually discover what caused the death, which means you must bring the action within two years or it is barred. However, there are exceptions to this rule, such as whether the person bringing the wrongful death claim is “disabled” (which includes being less than 18 years old), and whether the person who caused the death fraudulently covered up certain facts regarding the cause of death. If you have questions about whether a wrongful death claim is barred by the statute of limitations, you should consult with an experienced wrongful death attorney.

In wrongful death actions, Colorado law allows recovery of “economic damages” (e.g., funeral costs, lost wages, and medical expenses) and “noneconomic damages” (e.g., grief, loss of companionship, pain and suffering, and emotional stress). Colorado law limits the recovery of “noneconomic damages” to $250,000 adjusted for inflation (which, at this time, is $436,070), but does not limit recovery of economic damages. One exception to the noneconomic damages limit exists when the act that caused the wrongful death constitutes a “felonious killing” (murder in the first or second degree or manslaughter).

In addition, in certain circumstance, a person may want to elect a “solatium” payment, which is $50,000 adjusted for inflation (which, at this time, is $87,210) instead of noneconomic damages. An experienced wrongful death attorney can help you decide whether a solatium claim rather than a noneconomic damages claim is the appropriate choice under your circumstances. Regardless, solatium creates a damages floor for noneconomic damages, meaning you should be able to recover at least economic damages plus solatium, assuming, of course, you meet the other statutory requirements.

Only certain individuals can bring a wrongful death claim. To bring a wrongful death claim, you must have “standing.” Standing means the law recognizes you have a certain right that the courts can enforce or that you can make a certain legal claim. You may have standing to bring a wrongful death claim if you are one of the following:

–             the deceased’s spouse;

–             heirs of the deceased (e.g., the lineal descendants of the deceased);

–             designated beneficiaries of the deceased;

–             one or both parents of the deceased, if the deceased was unmarried and had no children at death.

Typically, the deceased’s siblings, cousins, aunts and uncles, and nieces and nephews do not have standing to bring wrongful death actions.

If someone else makes a wrongful death claim but you too had standing to make such a claim, then the person who made the claim may be required to share the proceeds of the claim with you. If the proceeds are shared, they should be divided in proportions based on the nature of your relationship to the deceased.

You should also be aware that there are timing restrictions governing when heirs, spouses, and designated beneficiaries can bring a wrongful death claim, as some can only bring such a claim during the first year following death, while others must wait until the second year after death. Therefore, we recommend consulting with an experienced wrongful death attorney if there is a question about the timing of the claim.

Because of their nature, wrongful death actions quite complex and are almost always highly emotional. For these reasons, you should consult with an experienced wrongful death attorney as soon as you believe you or someone else may be making such a claim. If you have questions, the Gasper Law Group offers free consultations regarding wrongful death claims.