When a loved one is killed by someone else’s carelessness survivors may have mixed feelings about filing a 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. In Georgia there are two separate claims that can be made for a death.
Second is what we call a survivor action which belongs to the estate. It is brought by the executor or administer seeking compensation for the pain and suffering the person endured before death plus the medical and funeral expense.
The family may choose to pursue both claims or only one of them depending on what makes the most sense under the circumstances.
Georgia’s wrongful death act which dates back to before the Civil War is one of the most humane wrongful death laws in the country. It measures the value of the life of the person who died with both economic and intangible aspects.
The economic aspects, you look at what their lifetime income and benefits might have been and the value of their services.
The intangible aspect, the jury exercising its discretion as fair and impartial jurors can look to the quality of life, relationships, activities, and etcetera and determine what the experience of living was worth to that person who died.
Additional Information on Wrongful Death in Georgia
Skillful legal advocacy can generate funds to care for the family’s real needs and with which the family may appropriately memorialize 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 law on wrongful death differs significantly from the wrongful death laws of all neighboring states. Usually the Georgia law is better, but not always. If the facts involve more than one state, we weigh all the options as to where a case should be filed. Under multijurisdictional practice rules, we are able to 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.
Atlanta Wrongful Death Lawyer
In Georgia, there can be two separate claims against a person or corporation who negligently causes a death:
– a “wrongful death” claim for the “full value of the life” which belongs to survivors designated by statute, and
– a “survival action” which belongs to the estate and is brought by the executor or administrator of the deceased for pain and suffering before death, medical expense and funeral expense.
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. For example, there may be medical liens that apply to the survival action but from which the wrongful death claim is exempt.
Under Georgia's wrongful death statute, first enacted before the Civil War, the measure of damages for wrongful death is the full value of the life of the deceased, from the perspective of the decedent. It includes both economic damages (projected lifetime income, with no deduction for living expenses or income taxes, value of services, etc.) and intangible factors such as the enjoyment of the experience of living.
The "full value of the life" is determined by the enlightened conscience of an impartial jury. Georgia law does not mandate any rigid formula or arbitrary on the damages awarded in a wrongful death case. Unlike some states, however, the subjective grief of the survivors is not part of the calculation of damages.
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.
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 within two years from the date of death.
The estate’s claim for injury to the decedent.
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.
Medical liens are often a factor in deciding what claims to include in a lawsuit. If there is limited insurance coverage and medical liens (by hospitals, doctors, insurers, Medicare, Medicaid or Tricare), survivors may decide to pursue only the wrongful death claim which is not subject to such liens. If liability insurance is ample and liens are light, however, it may be worthwhile to include the estate’s claims.
Where the decedent died within a very short time, 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.
Call us at our Atlanta office 404-253-7862 or submit your inquiry online, and find out if we can help.