When I started practicing law 41 years ago and began my first wrongful death case 35 years ago, I wanted to find an older, experienced lawyer who could answer some fundamental questions. What are the statutory factors to consider in evaluating a wrongful death case? What values have been placed on wrongful death cases in the past? How can you evaluate those past wrongful death results through a reliable statistical analysis? And how do you go about putting together a significant claim? What factors help produce a multi-million dollar result?
Placing a monetary value on a wrongful death claim is difficult because no amount of money can replace a human life. And the grieving survivors are understandably reluctant to establish a monetary value for their loss. They therefore turn to their lawyers for advice, and we, their lawyers, have to accept the fact that our help is limited to obtaining money damages. We can treat our clients with care and respect during this difficult time, but we cannot alter the tragedy they face.
I have settled twelve wrongful death cases so far this year (it’s August). Two were claims against the state which by statute must be publicly disclosed – they both settled for well over one million dollars. Nine other cases were against private parties who settled on the condition that the amounts are identified only as an “undisclosed sum.” A twelfth case was settled for less than one million, because of the decedent’s advanced age. In addition, I was co-counsel on three other cases where my co-counsel settled the claim for over one million.
I have been practicing law for 41 years, and for 35 of those years have been handling wrongful death cases. When I first started out one of my biggest challenges was trying to figure out what a particular case was worth. So now that I have some experience, I am putting together this article to help new lawyers who, like me, needed some help in sorting out settlement values for wrongful death claims.
I will begin by describing the statutory factors that must be considered in evaluating a wrongful death case. Then I will offer a statistical analysis of recent wrongful death case results. Then I will describe how we use that analysis at Brett Murphy. Finally, I will discuss the four things that must happen in order to expect a multi-million dollar verdict in a wrongful death claim -- or in any personal injury claim. I hope this brief article will be helpful to younger lawyers trying to evaluate their first wrongful death claim.
Statutory Factors to Consider
In English common law there was no recovery for a death, for the good reason that there was no way to measure the value of that which was lost. This led to the odd result that a negligent party was better off killing someone than merely injuring them. In The Fatal Accident Act of 1846, better known as Lord Campbell’s Act, England first allowed damages for a negligently caused death. The United States followed suit, except that in the United States each state has its own unique statutes governing the damages that can be recovered when a person dies as a result of another’s negligence.
Since I practice primarily in the northwestern United States, I am going to describe the factors that are commonly found in statutes regarding wrongful death claims by referring to the statutory law in the State of Washington. Although each state has a slightly different statutory framework, most states have a similar set of factors. Of course, the statutes of each individual state need to be considered.
Settlement values for wrongful death claims in Washington depend on four statutes. This brief summary will outline the legal requirements to qualify under each statute and explain the measure of damages under each.
Child Death Claims
Of special interest is the unique Washington statute for injury or death of a child (RCW 4.24.010). The decedent must be a minor, or a child on whom either or both parents are dependent for support, or a viable fetus, Moen v. Hanson, 85 Wn.2d 597 (1975). Damages are broadly defined to include “… loss of love and companionship of the child and for injury to or destruction of the parent/child relationship in such amount as, under all the circumstances of the case, may be just.”
This broad language has been interpreted to include parental grief, mental anguish, and suffering. Wilson v. Lund, 80 Wn.2d 91 (1971). Significantly, computation of damages is not limited to a child’s minority. Balmer v. Dilley, 81 Wn.2d 367 (1972). In addition, medical, hospital, medication and related expenses, and loss of services and support are recoverable.
There is no loss as difficult as the loss of a child, and as would be expected, damage awards for loss of a child are, as described in the statistical analysis below, higher than claims for the loss of a single adult, but less than claims for the loss of a spouse and parent who is supporting a family. In one particularly horrifying case, three young boys were burned to death in a pipeline explosion; two were under 18, one was single, 19, and thus no longer considered a minor. Our firm represented the boy who was just past the age of majority, and although we were able to obtain a multi-million dollar settlement on his behalf, it was significantly less than the awards from the same defendants in the same circumstances for the two boys who were under 18 and were thus qualified under the statute for “… such amount as, under all the circumstances of the case, may be just.”
General Wrongful Death Statute
Broadly defined damages are also recoverable in Washington for certain adults under the general wrongful death statute (RCW 4.20.010). The action is brought by the personal representative on behalf of “… the wife, husband, child or children…” of the deceased. Note that these damages are not available for adult decedents who are single and without children.
As discussed in the statistical analysis below, claims on behalf of adult decedents who are single and have no children tend to be lower than awards for adults who leave a spouse and children behind. For decedents with a surviving spouse or child, “… the jury may give such damages as, under all circumstances of the case, may to them be just.” Whether an adult decedent has dependents thus dramatically affects wrongful death verdicts.
Of particular note is that “pain and suffering in anticipation of death” is only recoverable by the beneficiaries listed in the statute, and then only if the decedent experienced a conscious period of pain and suffering before death. Investigation to tie down the period of consciousness through medical and lay testimony is thus one of the keys to a significant verdict. But again, these damages are not available to unmarried adults who die without children.
General Survival Statute
All decedents, even unmarried decedents without dependents, may recover under the General Survival Statute (RCW 4.20.046). The claim is brought by the personal representative for the benefit of the decedent’s estate. Damages include the present value of the decedent’s future net earnings had he lived a normal life expectancy. In calculating the net earnings, the effect of income taxation is not deducted from gross earnings. Hinzman v. Palmenteer, 81 Wn.2d 327 (1972). In short, unmarried decedents recover only their economic loss, so the amount of damages available is dependent upon three factors:
1) Their earning capacity as demonstrated by their earnings history;
2) Their future work life expectancy i.e. how many more years they had before they were likely to retire;
3) The discount rate used by the economist calculating the present value of their loss.
Careful selection of expert witnesses in the field of vocational rehabilitation and economic loss calculation is thus necessary to maximize the recovery.
Special Personal Injury Statute
Care must be taken with the Special Personal Injury Statute (RCW 4.20.060) because of the potential to duplicate damages recoverable elsewhere. However, it is useful in representing survivors who might not qualify for damages under other statutes. The claim is brought on behalf of the spouse or surviving children, and if there is no surviving spouse or issue, the claim may be brought on behalf of certain other family members – “… if there is dependent upon the deceased for support and resident in the United States at the time of the decedent’s death, parents, sisters or brothers…” The recoverable losses include medical, hospital, and funeral expenses and earnings lost prior to death.
In sum, the measure of damages available to survivors in Washington varies significantly from other states and depends significantly on the age, marital status, and parental status of the decedent.
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