If you have lost a loved one to an accident or an act of malpractice, our hearts go out to you. At the Marc Brown Law Firm, we understand that there is nothing more devastating than losing a loved one before their time. While nothing can be done to return your loved one to you, if you believe that their death would not have occurred but for another’s negligence, you maintain the right to bring forth a wrongful death lawsuit for damages. Our South Carolina wrongful death lawyer can explain everything you need to know.
What Is a Wrongful Death Lawsuit?
A wrongful death action is a type of civil action. It is similar to a personal injury case—a wrongful death cause of action existed when the deceased would have maintained cause for a personal injury action, but for death. Per South Carolina Statutes Section 15-51-10, a party is entitled to bring forth a wrongful death action when a death is caused by the “wrongful act, neglect, or default” of another.
How to File a Wrongful Death Claim
Only the executor or administrator of the deceased person’s estate maintains the right to bring forth a wrongful death action in South Carolina. Usually, this person is named in the decedent’s will. If they are not, they will be appointed by a court. Most wrongful death claims will be initiated with an insurance company, and will settle out of court. If a settlement cannot be reached, you can file a lawsuit.
How Do You Prove Wrongful Death?
In order to win a wrongful death action, you must be able to prove that your loved one’s death was the result of the wrongful act, neglect, or default of the defendant. As such, you must be able to prove that:
- The defendant owed the decedent a duty of care
- The decedent breached the duty of care owed to the decedent by doing something wrongful
- The wrongful act was the proximate cause of death
You can prove the defendant’s liability by gathering the right type of evidence, including police reports, medical reports, eyewitness’s testimony, and more, depending on the type of accident that led to death.
How Much Can You Sue for Wrongful Death?
Damages in most medical malpractice claims in our state are uncapped, which means that a plaintiff can seek compensation for the full value of losses. Damages that are recoverable in a wrongful death action include:
- All medical expenses incurred prior to death
- Funeral and burial expenses
- The value of the decedent’s lost wages, benefits, and loss of earning capacity
- The loss of the value of the decedent’s knowledge, care, companionship, protection, judgment, etc.
- Pain, suffering, and emotional harm suffered by the decedent’s family members
There are only two times when damages are capped:
- If damages are being sought in a medical malpractice claim, in which case noneconomic damages (like pain and suffering) are limited to $350,000 from a single provider
- Punitive damages, which are damages that are meant to punish the defendant, are capped at three times the amount of compensatory damages or $500,000—whichever is greater.
How Are Wrongful Death Settlements Paid Out?
Wrongful death actions are usually paid out by insurance companies, and are typically the result of a settlement that is reached through negotiations. There are two different ways in which the settlement payments may be made to the beneficiaries:
- A lump-sum payment. In a lump-sum payment, the recipient of a settlement will receive the entire settlement in a single lump sum. The administrator of the estate who brought forth the claim will then be responsible for distributing it to the beneficiaries.
- Wrongful death settlement payments through a structured settlement process. This means that the plaintiff and the defendant agree that the defendant will pay the full settlement amount, but instead of paying it upfront in one large lump sum, the settlement will be paid in smaller amounts over time.
Is a Wrongful Death Settlement Taxable?
Whether or not damages recoverable in a wrongful death action will be subject to taxes is complicated. The majority of damages that are received in a wrongful death action are not taxable.
According to the IRS, the current law holds that damages recoverable in a wrongful death action will not be subject to income tax, as “gross income” does not include any damages received—whether by lump sum or periodic payment—on “account of personal injury or sickness.” Because compensatory damages are designed to compensate a victim for a loss they have already sustained, they cannot be counted as taxable.
However, this doesn’t apply to all damages that are recoverable in a wrongful death action. Generally, punitive damages are taxable, although exceptions do exist. For example, if a statute exists in the state where the suit occurred that only allows for the recovery of punitive damages in a wrongful death action, then punitive damages will be excluded from gross income for tax purposes. In South Carolina, the court does not only allow for the recovery of punitive damages and, as such, any punitive damages recovered in a wrongful death action would likely be subject to taxes.
How Long Does it Take to Settle Wrongful Death Claims?
There is no one answer for how long it takes to settle a wrongful death claim. Instead, this can vary dramatically on a case-by-case basis. How long it takes to settle your case will depend on things such as the evidence to support your case, the amount of damages being requested, and the eagerness of the insurance company to settle the claim. Some wrongful death claims may be settled in a few months. Others may take much longer, requiring litigation that lasts for over a year. Talk to your attorney to get an idea for how long your case may take to resolve.
How Can an Attorney Help?
A wrongful death attorney can build your case, investigate the death, gather evidence, prove damages, negotiate your settlement, litigate your case in court, and more. At the Marc Brown Law Firm, we sympathize with your situation and want to help. To learn everything you need to know about how to fight for your right for compensation and bring forth a wrongful death lawsuit, contact our Sumter wrongful death lawyers directly today for a free consultation.