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Wrongful Death

When a family member is killed by someone else's negligence, survivors often have mixed feelings about filing a wrongful death lawsuit for that death. Certainly no amount of money can bring the departed loved one back. However, a monetary award is the only way that civil law has to recognize the value of the life, compensate for the death, and penalize the party at fault.

Skillful legal advocacy in a wrongful death case can generate funds to care for the family’s real needs and with which the family may appropriatelymemorialize the life of the departed. Within the requirements of allocation of damages to the spouse and children, survivors can choose to put a monetary award for wrongful death to any good use, whether to support a family deprived of the breadwinner, to educate children, or to fund a charity in the memory of the deceased.

Georgia’s wrongful death law was first enacted before the Civil War. It is one of the most humane wrongful death statutes and body of case law in the United States. Georgia law on wrongful death differs significantly from the wrongful death laws of all neighboring states. In most ways the Georgia law is better, but not always. If the facts provide a choice among different states, we weigh all the options as to where a case should be filed. Under multijurisdictional practice rules, we can handle all matters prior to filing suit in court in all but two states. When necessary to file suit in a state other than Georgia, we associate local counsel and obtain admission to practice pro hac vice in the other state.

In Georgia there are two separate claims that can be made for a death.

“Wrongful death” claim for full value of the life.

First is a wrongful death claim for the full value of life which belongs to survivors designated by statute: spouse, children, parent, or heirs at law depending on the circumstances. It defines the "full value of the life"   of the person who died to include both economic and intangible aspects. Georgia law does not mandate any rigid formula or arbitrary on the damages awarded in a wrongful death case, but rather the "full value of the life" is determined by the enlightened conscience of an impartial jury. Unlike some states, however, the subjective grief of the survivors is not part of the calculation of damages.

The economic aspects of “full value of the life” include the projected lifetime income and benefits and the value of their uncompensated services to family and community, reduced to present value.

In determining the intangible aspect of “full value of the life”  fair and impartial jurors are guided by their “enlightened conscience” in assessing the quality of life, relationships, activities, passions and pursuits, and determine what the experience of living was worth to that person who died. The intangible value of life is not reduced to present value.

“Survival action” for the estate of the deceased.

Second is what courts call a "survival action" because the rights of the decedent survive the death and belong to the estate of the deceased. That claim may be pursued by the executor or administer seeking compensation for the pain and suffering  before death plus the medical and funeral expense. Separate from the wrongful death claim on behalf of designated beneficiaries, the administrator or executor of the decedent's estate has a claim for the decedent's medical and funeral expenses, and for conscious pain and suffering before death.

Punitive damages may be awarded in connection with such a survival action on behalf of the estate but not for the wrongful death claim. Experienced legal counsel can weigh the factors in deciding whether to include a punitive damages claim.

Where the decedent died almost immediately after impact but could see what was about to happen, a claim for the mental pain of recognizing impending death may have great value. In appropriate cases, an accident reconstruction can help establish how much time the person had to recognize impending doom before being killed.

The decedent’s family members may choose to pursue both claims or only one of them depending on what makes the most sense under the circumstances. It is entirely appropriate in Georgia for the family, with experienced legal counsel, to pursue both claims, or to choose to file one claim and abandon the other.

Effect of liens.

Medical liens are often a factor in deciding what claims to include in a lawsuit. Liens for medical bills and other debts of the decedent apply to an estate’s claim but not to the wrongful death claim of survivors designated by statute. If there is limited insurance coverage and medical liens, survivors may decide to pursue only the wrongful death claim which is not subject to such liens, or to allocate all but a token amount of a settlement to the wrongful death claim. If liability insurance is ample and liens are light, however, it may be worthwhile to include the estate’s claims.

Valuation.

Because valuation of a wrongful death claim is affected by many factors, including disputed issues of liability, contributory negligence, comparative negligence, assumption of risk, proximate causation and insurance coverage considerations, it is important not to confuse the value of a case with the true value of the departed loved one's life. We have handled wrongful death cases in which the recovery was $8,000,000 and others in which the recovery was $250,000 or less, all dependent upon the interplay of facts, insurance, and legal issues.

Who has the right to sue for wrongful death?

We often receive inquiries from family members whose rights to recover for wrongful death of a deceased family member are severed by operation of law. Sometimes we can work around these challenges, but sometimes not. It is important to get all close relatives of the deceased on the same page, but if the family is splintered and dysfunctional that can be virtually impossible.

A wrongful death claim in Georgia belongs to survivors who are identified by statute:

– A surviving spouse has the right to sue for wrongful death in Georgia, but must share the recovery equally with surviving children of the decedent. Where the surviving spouse is required to share a wrongful death recovery with the decedent's minor child, the child's share up to $15,000 may be held by the child's natural guardian without posting a bond. If a minor child's share of the recovery is $15,000 or more, a guardian of the child's property must be qualified in probate court, and a bond posted. The bond requirement may be avoided if the probate court approves a structured settlement with annuity payments going to the child after attaining age 18, with the cash held by the child's natural guardian remaining less than $15,000.

– If there is no surviving spouse, the right goes to surviving children. If the surviving spouse is missing, a court may permit the children to pursue the death claim alone.

– If there is neither a spouse nor child surviving, then the decedent's parents have the right to sue under Georgia law. If the parents of a deceased child are divorced or living apart, the trial court has full discretion to allocate the wrongful death recovery between them, considering any pertinent factors. There have been cases of an uninvolved absentee father being limited to as little as one half of one percent of the total recovery for the wrongful death of a child.

– In the absence of a surviving spouse, child or parent, the administrator of the decedent's estate can sue on behalf of the next of kin. Even if the next of kin is a minor, e.g., a sibling, an anomaly in current Georgia law requires that an administrator file suit on behalf of the minor beneficiary within two years from the date of death rather than tolling that time limit due to the child’s age.

Call us today at our Atlanta office 404-253-7862 or submit your inquiry online, and find out if we can help.


Ken Shigley is a 2019 recipient of the “Tradition of Excellence” Award from the State Bar of Georgia General Practice & Trial Section.

Mr. Shigley is the first Georgia lawyer to earn three national board certifications in his practice area from the National Board of Trial Advocacy – in Civil Trial Law, Civil Practice Law and Truck Accident Law. He is a board member of the Academy of Truck Accident Attorneys, and former chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, which includes the Trucking Litigation Group. 

He is lead author of Georgia Law of Torts: Trial Preparation and Practice, now in its tenth annual edition with Thomson Reuters West. His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brainneckbackspinal cordamputation and burn injuries. 

In 2011-12, Mr. Shigley was president of the State  Bar of Georgia, which includes all the lawyers and judges in Georgia.  He also is a former chair of the Institute for Legal Education in Georgia (board member 2008-2020, chair 2012-13),  State Bar of Georgia Tort & Insurance Practice Section (1994-95), and the Georgia Insurance Law Institute (1994). A former prosecutor and former insurance defense lawyer, Mr. Shigley is a graduate of Furman University and Emory University Law School. He is a widower, father of two adult children, and an elder in his church. When time permits, he enjoys travel, backpacking and scuba diving.

 

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