Legal remedies for compensation following the loss of a loved one
When a loved one dies, the focus is understandably on the emotional loss and your grief. But, the impact can be financially devastating as well.
A wrongful death claim is a civil action brought on behalf of the spouse or family members of a decedent (the deceased person) who was killed as a result of a negligent or wrongful act. The claim is meant to compensate the surviving family members for the losses they suffered as a result of their loved one’s death.
Montana, like all states, has laws that govern wrongful death claims. These laws address who can file a wrongful death claim, how a wrongful death claim must be proven, and what damages can be awarded.
Continue reading for a breakdown of these important factors.
Who can file a wrongful death claim in Montana?
The personal representative of the decedent’s estate is the only person who can file a wrongful death claim in Montana.
However, it’s important to recognize that when a court awards damages in a wrongful death case, the damages aren’t awarded to the personal representative. Rather, the personal representative serves as trustee of the award and must distribute the award to the appropriate heirs.
Who can receive damages in a wrongful death case?
Montana allows the following parties to recover damages in a wrongful death lawsuit:
- The spouse of the deceased
- The minor children of a deceased parent
- The parents of a deceased minor child
Under Montana law, the parents of a deceased adult child may also recover damages, but only if there’s significant evidence of an extraordinarily close and interdependent relationship (such as when an adult child serves as the caretaker of a parent).
What must be proven in a wrongful death lawsuit?
When a personal representative files a wrongful death lawsuit, they essentially step into the shoes of the decedent. As a result, the personal representative has to prove liability the same way the decedent would have had to prove liability had they survived the negligent or wrongful act.
For example, if the decedent was killed as a result of a person’s negligence, the personal representative would have to prove the elements of negligence (that the defendant owed the decedent a duty, the defendant breached the duty, and the defendant caused damage to the decedent).
Common causes of wrongful death include:
What damages can be recovered?
It’s important to recognize that damages in a wrongful death case don’t represent losses of the decedent, but rather the losses of the decedent’s family members.
There are 4 main types of damages available in a wrongful death case.
1. Loss of consortium (or loss of comfort and society)
Courts generally use the term “loss of consortium” when referring to the losses suffered by the spouse and “loss of comfort and society” when referring to the losses suffered by other family members.
Regardless, the terms essentially mean the same thing. These damages represent the loss of care, companionship, guidance, love, and affection.
As you might imagine, it’s incredibly difficult to put a price tag on these losses. Generally, a jury makes a decision about how much to award after hearing testimony from loved ones about their relationship with the decedent.
2. Damages for lost support
The jury will attempt to calculate the amount of money that the decedent would reasonably have contributed for the support, education, training, and care of their family members.
This is more straightforward than calculating the loss of consortium. As the Supreme Court of Montana explained:
“An acceptable way to show how much money would have been available for the support of a decedent's wife and children is to show what the decedent probably would have earned during the remainder of his life, and to deduct from that amount his personal maintenance expense and the amount he would have spent on other things.”
3. Mental anguish
These damages attempt to compensate family members for the grief, sorrow and mental anguish they experienced as a result of the decedent’s death.
4. Funeral and burial expenses
The family members of the decedent in a wrongful death action can be reimbursed for the money spent on their loved one’s funeral and burial.
When a wrongful death action is pursued, the jury calculates and awards a lump sum. It’s not the job of the jury to ascribe the specific amount to the different family members. Rather, the trial court, after the verdict, is given the task of allocating the money damages among the family members (for example, a decedent might leave behind 2 children, each of whom receives a different amount).
How does a survival action differ from a wrongful death action?
A “survival action” raises claims that came into existence while the decedent was still alive. For example, a survival action may be appropriate (in addition to a wrongful death action) if the decedent didn’t die right away.
In the case of a survival action, the personal representative can recover the lost earnings, pain and suffering, and other damages from the time of the decedent’s injury to the time of their death.
Let’s look at an example:
In the above example, Roger can file a wrongful death claim in order to recover damages for Susan. In addition, Roger can file a survival action in order to recover damages for Jeremiah. These damages might include the pain and suffering Jeremiah experienced while in the hospital, the medical expenses he incurred, and the lost wages from missing 7 days of work.
Of course, Jeremiah is no longer alive to receive these damages, so the damages will be placed in the estate and distributed according to Jeremiah’s will.
Then, Susan, Jeremiah’s wife, can sue the at-fault driver for wrongful death damages as well to cover the costs that arose from the loss of her husband such as funeral expenses, loss of companionship, loss of future wages, loss of benefits, etc.
How soon must a wrongful death case be filed?
The statute of limitations for wrongful death claims is 3 years. This means that the wrongful death claim must be filed within 3 years from the death of the decedent. If the claim isn’t filed within this time period, the case will likely be dismissed.
Processing the death of a loved one and simultaneously pursuing a wrongful death claim can be extremely challenging and overwhelming. An experienced Montana attorney can help ease the burden and get you the compensation you deserve.
If you haven’t found an attorney yet, take a look at our Montana law firm directory.