When someone is injured in an accident, they can typically file a personal injury lawsuit against the responsible party. But what happens when the victim is killed in the accident? The dead cannot sue. But their estate and heirs can still seek to collect damages by filing what is known as a wrongful death lawsuit.
Here are a few things you should know about these lawsuits and how they work in North Carolina.
Wrongful death is a creation of state law.
A wrongful death claim is a special type of personal injury claim expressly recognized by North Carolina law. This law effectively combines two previously separate causes of action: The claim the victim would have had against the negligent party if they had survived the accident, and the claim the victim’s family members presently have arising from the victim’s death.
Wrongful death lawsuits must be filed by the victim’s estate.
Although family members are entitled to damages in a wrongful death claim, the lawsuit itself must be filed by the executor of the victim’s estate. If the victim made a will prior to death, the personal representative named in that document typically serves as executor. Otherwise, a North Carolina court will appoint an administrator for the estate. The estate will also pay for the expenses of filing and pursuing the wrongful death lawsuit.
Wrongful death awards are not part of the victim’s estate.
Although the estate is responsible for filing a wrongful lawsuit, the estate itself is not the beneficiary. Any money recovered from the negligent defendants is instead distributed according to the provisions of North Carolina’s intestate succession law. Typically, this means the money goes to the victim’s spouse and children. The estate may, however, seek reimbursement for any costs it paid to bring the lawsuit. And if the victim had any outstanding hospital or medical expenses, up to half of the wrongful death award may be applied to those bills.
There is a strict time limit to file a wrongful death lawsuit.
In most cases, a wrongful death lawsuit must be filed within two years of the victim’s death. A North Carolina judge is normally required to dismiss any lawsuit filed outside of this two-year window. There are limited exceptions that can extend this statute of limitations, but you should never assume such an extension will be available.
The victim’s actions may bar recovery of any damages.
North Carolina is one of a handful of estates that continue to apply contributory negligence in wrongful death and personal injury cases. This means that if a jury finds the victim was even 1 percent responsible for the accident that caused his or her death, the defendant is not liable for any damages.
Speak with a North Carolina Wrongful Death Lawyer Today
Dealing with the loss of a loved one is never easy, especially when their death was the result of third-party negligence. And given the complexity and time-sensitive nature of wrongful death claims, it is imperative for family members to seek out a qualified North Carolina personal injury attorney as soon as possible. Contact Howard, Stallings, From, Atkins, Angell & Davis, P.A., today to speak with a lawyer today about your wrongful death case.