Wrongful Death and Car Accidents

Driving and fatal car accidents are inextricably linked. The National Highway Traffic Safety Administration (NHTSA) estimates that there were 40,990 motor vehicle accident-related fatalities in 2023, a 5.4% decline from 2021's ten-year high of 43,230 deaths. Though the numbers continue to trend downward, preliminary NHTSA estimates for the first nine months of 2024 put the number of lives lost to traffic accidents at 29,135.

Most fatal car accidents are caused by human error, such as distracted driving, driving while fatigued, speeding, and driving under the influence of alcohol or drugs. As a result, lots of wrongful death lawsuits arise from motor vehicle accident fatalities.

In this comprehensive overview of car accident wrongful death lawsuits, we'll cover:

• what a wrongful death claim is
• who can sue for wrongful death
• the steps involved in bringing a wrongful death insurance claim or lawsuit
• the damages that typically are available in a wrongful death case
• factors that influence how much a wrongful death case is worth
• how long you have to file a car accident wrongful death lawsuit, and
• how an experienced car accident lawyer will help you maximize the value of your case.

What Is a Wrongful Death Claim?

In the simplest terms, a wrongful death claim is a personal injury claim that the victim (called the "decedent") can't bring because they've died.

More specifically, wrongful death is a state law civil (noncriminal) claim that arises when someone dies due to the negligent, reckless, or intentional acts of another. When death results from some underlying wrongful act—another driver's negligence, a doctor's malpractice, or a dangerous product, for example—the case automatically becomes a wrongful death case.

Every state has its own wrongful death law. These laws typically define "wrongful death," specify who's allowed to sue, and describe—though often only in general terms—the kinds of compensation (called "damages") that can be awarded in a wrongful death case. If you want to file a wrongful death lawsuit, you must carefully follow your state's wrongful death rules.

Elements of a Car Accident Wrongful Death Claim

While traffic fatalities sometimes result from reckless driving, or even from intentional misconduct like road rage, the overwhelming majority of deaths are caused by simple negligence. That's where we'll focus our attention.

To prove a negligence-based car accident wrongful death claim, the executor of Roe's estate must show that:

• Doe was negligent, meaning they weren't as careful as they should have been under the circumstances
• Doe's negligence caused the collision
• Roe was killed in the collision, and
• Roe's surviving relatives and estate are entitled to damages because of Roe's death.

In most wrongful death cases, the parties will fight over negligence, causation, and damages, the first, second, and fourth elements. But in our hypothetical case, Doe doesn't have much room to argue about negligence or causation. Doe's distracted driving clearly caused the wreck. And because Roe didn't have time to avoid the collision, there's no real chance that any comparative negligence might be attributed to Roe.

(Learn more about proving the elements of a wrongful death case.)

Who Can Sue for Wrongful Death?

In most states, a wrongful death claim must be brought by the executor (sometimes called the "personal representative") of the decedent's estate. If the decedent died with a will, the executor will be named there. If the decedent died without a will, someone—often a surviving spouse or other family member—will be appointed as executor by the state's probate court.

In a few states, one or more surviving family members can file a wrongful death lawsuit. State law will identify which relatives are allowed to sue. The surviving spouse and children will be first in line, followed by parents, siblings, and more distant relatives.

You don't need to worry about a relative sneaking into court, filing a stealth wrongful death case, and absconding with the proceeds. State laws are designed so that surviving relatives who might be entitled to a share of the wrongful death damages are notified and can appear in the case. If you're worried about being excluded, speak to a lawyer.

Assume that Roe lived in a state where the executor must bring a wrongful death claim. Roe left a will naming their spouse as executor of the estate. Roe's spouse will bring a wrongful death insurance claim. In the unlikely event the case doesn't settle, Roe's spouse will also be the person to file suit.

(Learn more about who can bring a wrongful death claim.)

Steps to Bring a Car Accident Wrongful Death Claim

These, in general terms, are the steps involved in bringing a car accident wrongful death claim. You'll want an experienced lawyer to handle these tasks for you as you recover from the emotional devastation of your loss.

Gather Information

The starting point for any claim will be gathering information about the decedent, their survivors, and how the death happened. Your lawyer will:

• collect the decedent's medical records and bills, if the decedent received medical care for their injuries prior to death
• order a copy of the decedent's death certificate
• get a copy of the police report
• speak to witnesses and get statements from them
• visit the crash site to take pictures, video, and measurements
• identify possible sources of surveillance, traffic, and dashcam videos and arrange to get copies
• get the decedent's last will, if they had one
• identify all surviving relatives who might be entitled to share in the wrongful death damages, and
• collect the decedent's employment and income records, including tax returns.

Depending on the facts, more information might be necessary. For instance, if the decedent suffered from a chronic illness like diabetes or heart disease, medical records relating to those conditions will be needed so medical experts can establish a probable life expectancy.

Identify the Responsible Parties

In any wrongful death case, the goal is simple: Identify as many potentially responsible parties as possible, and bring claims against all of them. Then let them fight amongst themselves to figure out who's on the hook and has to pay.

Quite often, as in our hypothetical case, there will only be a single responsible party who's easy enough to identify. But that won't always be true. For example, if your lawyer suspects that the crash was caused, in whole or in part, by a vehicle or component defect, they'll need to know who made and sold the defective products. When faulty maintenance is to blame, your lawyer will zero in on whoever did the shoddy repairs.

Sometimes, poor road design or maintenance causes an accident. Your attorney will identify the state or local government agency responsible for the road, along with all contractors involved in its design, construction, and maintenance.

File Insurance Claims Against All Potentially Liable Parties

Unless you're running into a statute of limitations problem (discussed below), chances are your lawyer won't come out of the gate with a wrongful death lawsuit. Lawsuits are expensive and time consuming, and it almost always makes sense to explore settlement possibilities before filing. The best way to do that is by starting with insurance claims.

The insurance claim process begins with a claim notice letter to each potentially liable party. They'll pass the letter on to their insurer or, in the case of a big company, the in-house legal department. The other side will need time to gather information and investigate. Eventually, though, your lawyer will send a settlement demand letter, and the parties will begin settlement talks.

What happens if the person who caused the wreck was uninsured, or didn't have enough insurance? In that event, you'll have to look to the decedent's uninsured or underinsured motorist coverage—if they had it. These coverages aren't required by law in most states. If the decedent had what's commonly known as "full coverage," then they probably had one or both of these kinds of insurance.

The overwhelming majority of car accident cases, including those involving a wrongful death, settle out of court. Our Roe family hypothetical case, for example, almost certainly wouldn't see the inside of a courthouse. But a small percentage of cases—less than one in ten—end up in a trial.

Filing a Lawsuit

When settlement talks fail, your only path to collecting damages will be a lawsuit. Before you make the decision to sue, you should have a frank discussion with your lawyer about what's involved, and the emotional toll a court case is likely to have on you and other family members.

If you decide to move forward, your lawyer will:

• prepare and file a wrongful death complaint, file it in the proper court, and make arrangements to serve the suit papers on all defendants (parties you're suing)
• handle all pretrial discovery, including interrogatories, requests to produce documents, depositions, and more
• prepare you to testify in a deposition and, if necessary, at trial
• brief and argue all pretrial motions
• try the case in court, and
• handle any post-trial appeals.

So, how long is this process likely to take? Much depends on factors beyond your (or your attorney's) control, like how many cases are ahead of you on the court's docket. But here's a rule of thumb: From the time you file in court, expect it to take between 12 and 18 months to get your case to trial. If there's an appeal, tack on another 9 to 12 months.

(Find out more about the typical timeline of a car accident lawsuit.)

Damages in a Wrongful Death Case

If you win your car accident wrongful death case, you'll receive what's known as "compensatory damages." As the name suggests, these damages are meant to compensate the decedent's estate and surviving family members for losses they've suffered because of the death.

Your state's wrongful death law will specify the kinds of damages you can collect. If the damages you want aren't on the list, you can't recover them.

Compensatory damages come in two types: Economic damages and noneconomic damages.

Economic Damages

Economic damages, also known as "special" damages, reimburse for losses and expenses that are paid out-of-pocket or by insurance. Common wrongful death economic damages include:

• loss of the decedent's financial support
• loss of inheritance
• amounts paid to replace household services the decedent provided
• medical expenses for treatment of the decedent's final injury, and
• the decedent's funeral and burial expenses.

In our example, Roe's surviving spouse and children will look to recover all of these damages, except for expenses relating to Roe's crash injuries (because Roe died at the scene). Their lawyer will hire expert witnesses to compute the value of Roe's lifetime future earnings. Roe's average salary of $150,000 per year will serve as a baseline for these computations. They family will also recover $13,000 in funeral and burial costs.

Noneconomic Damages

Noneconomic damages—sometimes called "general" damages—compensate for injuries and losses that aren't paid out of pocket. Depending on state law, they might include:

• loss of instruction, nurturing, and guidance the decedent would have provided their minor children
• pain and suffering the decedent experienced from the onset of injury until death
• loss of the decedent's love, affection, companionship, assistance, and moral support, and
• the surviving spouse's loss of consortium, or marital relations and intimacy.

What About Punitive Damages?

Punitive damages don't compensate survivors for their losses. Instead, they punish a wrongdoer and deter others from similar conduct in the future. Punitive damages are rare in cases based on ordinary negligence. They might be awarded when a car accident death results from extreme recklessness or intentional wrongdoing.

Is There an Average Payout for Car Accident Deaths?

Unfortunately, no. There's simply no readily available, reliable source of data to compute such an average. And even if data were available, calculating an "average" wouldn't tell you anything useful about your case. The value of a claim for an 88-year-old retiree means nothing in a case involving the wrongful death of a 40-year-old neurosurgeon.

Your time will be better spent focusing on the key factors that often carry the most weight when valuing a wrongful death claim, including:

• The decedent's age. Cases involving very young or very old victims often have a lower value than those where the decedent was a young or middle-aged adult. Why? Because the death of a young child or a senior retiree probably involves much less in economic damages like lost earnings and the costs of replacement household services.
• What the decedent did for a living. The more money the decedent earned (or could be expected to earn in the future), the more a wrongful death claim is worth.
• The size of the decedent's surviving family. If the decedent left only a surviving spouse, the value of the case will almost certainly be far less than when the decedent also had several children.
• The decedent's share of fault. When the decedent was partly to blame for the car accident, in most states their comparative negligence will reduce the value of a wrongful death case, perhaps significantly.
• State laws. As mentioned above, state laws specify how wrongful death claims work, the kinds of damages that are allowed, and any damage caps.
• Insurance policy limits. In most cases, damages won't come out of the defendant's pocket. Instead, they'll be paid by the defendant's insurance company. Sometimes, insurance coverage limits dictate how much money the plaintiff can collect.

(Learn more about wrongful death damages.)

Deadline to File a Wrongful Death Lawsuit

A statute of limitations is a law that puts a deadline on your time to file a wrongful death case in court. Miss the filing deadline and, unless there's an extension that gives you more time, you've lost the right to sue for damages.

Each state makes its own wrongful death statute of limitations. Most allow two years from the date of death to sue. Don't confuse a state's personal injury statute of limitations with its wrongful death statute of limitations. They're not always the same. While your case involves a car accident—which ordinarily would be a personal injury claim—the more specific wrongful death statute almost always controls.

Note, finally, that in some special circumstances, a different limitation period might apply. For example, if you're suing the government for wrongful death, it's a near certainty that a much shorter claim deadline will apply. In a case like that, or when you're not sure how much time you have to file in court, speak to a lawyer right away.

Do You Need a Lawyer for a Car Accident Wrongful Death Case?

Yes, you do. There's no such thing as a simple or easy wrongful death case, no matter how straightforward the facts might appear to be. More often than not, you'll encounter sticky factual and legal issues that require extensive research, briefing, and argument to the court. And because wrongful death damages usually involve real money, you can expect the other side to put up a serious fight.

An experienced wrongful death lawyer understands the legal issues, knows how to prepare the case for settlement or trial, and can help to craft a narrative that puts the decedent in the best possible light. Just as important, counsel will bring to the case the kind of emotional objectivity that you probably can't.

When you're ready to get your case started, here's how to find an attorney who's right for you.