Kansas City Wrongful Death Attorney

Wrongful death claims are very different from injury cases.  Wrongful death cases are very different from lawsuit to recover for property damage, lost wages, hospital bills, and other types of claims, with which you may be familiar.  It is understandable to think a death claim is just a larger version of other types of injury cases.  They are not.   Please allow us to explain.

Wrongful death – In short

Wrongful death claims are filed to recover compensation for a deceased loved one. These cases arise when a person dies as a result of the negligence of another person or entity.

Wrongful death claims are brought by the surviving members of the deceased victim’s immediate family. Missouri law requires wrongful death clams to be filed in State Court.  This means a Kansas City wrongful death claim will be in the Circuit Court of Cass County at Harrisonville or the Circuit Court of Johnson County at Warrensburg.  Cases where the victim or the person who caused the death live in Kansas City should be brought in the Circuit Court of Jackson County at Independence.

Wrongful Death Versus Injury Claims

The History

Injury claims originate from “the common law.”  This is the law, originating from British court law, adopted by America when it was founded.  Injury claims evolved over hundreds of years and tens of thousands of injury cases.  The degrees and types of damages, for which you could recover money, evolved.  The skills and techniques accident lawyers used to recover money for their clients was honed to a sharp science.

There was no “claim” or recognizable “lawsuit” at common law for death. Caesar once boasted mortui non postulant … “dead men don’t sue.”  When my father Joe Hamilton was a young lawyer, the joke was “if you hit someone with your car, and don’t kill them; back up and finish.”  Such heartless expressions exposed the unjust, cruel nature of our traditional laws.  There was “just” compensation for injury, but no justice for the families of those killed.

In 1855, Missouri made a step in the right direction to alleviate the injustice imposed upon families of those wrongfully killed by passing the wrongful death statute.  This is not a mere difference in form.  Wrongful death claims are a real, substantial difference.  Wrongful death claims do not come from centuries of judges carefully working out details of claims to produce a fair result.  Rather, wrongful death claims originate from factors recently passed by State Legislators.  Justice is more elusive.  The paths to achieving wrongful death justice require specialized skill.  Those paths are not intuitive; wrongful death justice requires wrongful death experience.

Benefits we provide:

• Payment of outstanding bills and debts
• Wrapping up the estate and other legal issues
• Payment of funeral expenses
• Providing for the future of children who are minors
• Future living expenses for the surviving spouse and dependents
• You’ll have our 42+ years of legal experience on your side.
• NO FEE UNLESS WE COLLECT FOR YOU

Wrongful death claims often occur after auto accidents, railroad collisions, crossing accidents, exposure to hazardous chemicals, medical malpractice, bicycle accidents, and defective products.  Call us with your questions and let us help you and your family.

Missouri’s Wrongful Death Statute:

Action for wrongful death – who may sue – limitation R.S.Mo. 537.080.

• 1. Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstance which, if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party who, or the corporation which, would have been liable if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured, which damages may be sued for:
  • By the spouse or children or the surviving lineal descendants of any deceased children, natural or adopted, legitimate or illegitimate, or by the father or mother of the deceased, natural or adoptive;
  • If there be no persons in class (1) entitled to bring the action, then by the brother or sister of the deceased, or their descendants, who can establish his or her right to those damages set out in section 537.090 because of the death;
  • If there be no persons in class (1) or (2) entitled to bring the action, then by a plaintiff ad litem. Such plaintiff ad litem shall be appointed by the court having jurisdiction over the action for damages provided in this section upon application of some person entitled to share in the proceeds of such action. Such plaintiff ad litem shall be some suitable person competent to prosecute such action and whose appointment is requested on behalf of those persons entitled to share in the proceeds of such action. Such court may, in its discretion, require that such plaintiff ad litem give bond for the faithful performance of his duties.
• Only one action may be brought under this section against any one defendant for the death of any one person.
• (RSMo 1939 §§ 3652, 3653, A.L. 1955 p. 778 § 537.070, A.L. 1967 p. 663, A.L. 1979 S.B. 368, A.L. 1991 H.B. 236)Prior revisions: 1929 §§ 3262, 3263; 1919 §§ 4217, 4218; 1909 §§ 5425, 5426
  

  Note several important aspects of this statute.

  1. There is a “class” of persons, not a single claimant.
  2. The wrongful death action is created by statute, not courts over time.
  3. All wrongful death lawsuits require court approval, even the settlements.
  4. The Court, not the parties, approves how the wrongful death money will be divided.

Wrongful Death Time Limits are Different

Injury cases are usually covered by claims under negligence, negligence per se, and similar accusations.  These claim must be filed within five years of the event.  Contract claims have ten years to file their claims.  Wrongful death claims have a relatively short period, three years in which to file.  Three years may seem like a long time; however, when looking a dealing with death, distributing a decedent’s estate, discovering and investigating the cause of a death, and getting the family unified to bring the claim; three years will require diligence.

Wrongful Death Defenses:

There is a statute as to wrongful death defenses.  It is as follows:

Defenses to wrongful death action.

537.085. On the trial of such action to recover damages for causing death, the defendant may plead and prove as a defense any defense which the defendant would have had against the deceased in an action based upon the same act, conduct, occurrence, transaction, or circumstance which caused the death of the deceased, and which action for damages the deceased would have been entitled to bring had death not ensued.

(L. 1955 p. 778 § 537.090, A.L. 1979 S.B. 368)

Wrongful Death Defense Analysis

This statute may seem boring at first, but it is not.  Remember, the victim has died.  Therefore, he or she is not around to respond to allegations that they are at fault (even partly) for the accident.  The wrongful death lawsuits best witness is not around, like injury cases.

Next, there is a specific Missouri law on the division of wrongful death money after judgment at trial.  It is as follows:

What is it worth?  Wrongful Death Money Damages

Damages to be determined by jury — factors to be considered.

Basically, the family members must focus on a different set of factors to recover for the wrongful death of a loved one.  These damage factors include:

• Loss of services
• Loss of companionship
• Loss of comfort
• Loss of instruction
• Loss of guidance
• Loss of counsel
• Loss of training
• Loss of support
• Funeral bills
• Medical bills
• Anticipated wages and benefits (if they had lived)
• The pain and suffering just prior to death
• The value of child care (presumed to be 110% of Missouri’s average weekly wage)
• The value of elder care

You are thinking right now, “what does all that mean?” It is confusing as a practical matter.  When it comes to the question “Who is at fault?” This is proved in the same manner as an injury case.  When is comes to the question,  “What did the other person do wrong?” This is also proved similar to an injury accident case.  However, damages are different.

For this reason, wrongful death claims require the kansas city wrongful death attorney to investigate factors like:

• The decedent’s health
• Life Expectancy
• Talents
• Habits
• Age
• Earning capacity (future)
• Character

For the death of a teenager, the income of the parents becomes relevant.  How the person dies becomes relevant.  Some cases may seek additional money damages for “aggravating circumstances.”  Such exemplary damage claims are closely tied to the manner in which one seeks punitive damages.

What?  Is there a Cap on Wrongful Death Compensation?

Here is another example of the unique nature of achieving just compensation for the wrongful death of a loved one.  Namely, one must navigate statutory caps on the total amount of money one can recover.  Here, the type of damages of your particular case comes in.  Also, how the person died becomes important.

For example, there is generally no cap on the amount of economic damages one may recover for wrongful death(thin out of pocket costs).  However, the Missouri Supreme Court has ruled that since wrongful death claims were created by statute, and not a result of traditional judge common law passed down by Britain, then the legislature has the power to limit a family’s recovery.  Yes, your legislature has voted to make such limitations.

For example, Missouri has passed laws limited non-economic damages for medical negligence cases (think $700,000 maximum).  Damages for “grief and bereavement by reason of death” have been eliminated.

Missouri Wrongful Death Damages Statute

537.090. In every action brought under section 537.080, the trier of the facts may give to the party or parties entitled thereto such damages as the trier of the facts may deem fair and just for the death and loss thus occasioned, having regard to the pecuniary losses suffered by reason of the death, funeral expenses, and the reasonable value of the services, consortium, companionship, comfort, instruction, guidance, counsel, training, and support of which those on whose behalf suit may be brought have been deprived by reason of such death and without limiting such damages to those which would be sustained prior to attaining the age of majority by the deceased or by the person suffering any such loss. In addition, the trier of the facts may award such damages as the deceased may have suffered between the time of injury and the time of death and for the recovery of which the deceased might have maintained an action had death not ensued. The mitigating or aggravating circumstances attending the death may be considered by the trier of the facts, but damages for grief and bereavement by reason of the death shall not be recoverable. If the deceased was not employed full time and was at least fifty percent responsible for the care of one or more minors or disabled persons, or persons over sixty-five years of age, there shall be a rebuttable presumption that the value of the care provided, regardless of the number of persons cared for, is equal to one hundred and ten percent of the state average weekly wage, as computed under section 287.250. If the deceased is under the age of eighteen, there shall be a rebuttable presumption that the annual pecuniary losses suffered by reason of the death shall be calculated based on the annual income of the deceased’s parents, provided that if the deceased has only one parent earning income, then the calculation shall be based on such income, but if the deceased had two parents earning income, then the calculation shall be based on the average of the two incomes.

(RSMo 1939 § 3654, A.L. 1945 p. 846, A.L. 1955 p. 778 § 537.080, A.L. 1967 p. 663, A.L. 1973 H.B. 173, A.L. 1979 S.B. 368, A.L. 2005 H.B. 393)

Prior revisions: 1929 § 3264; 1919 § 4219; 1909 § 5427

CROSS REFERENCE:

Applicability of statute changes to cases filed after August 28, 2005, 538.305

This statute makes wrongful death cases different than personal injury cases. Future earnings, future pain and suffering, disability, limitations, future medical case; so many of the typical aspects of case value with personal injury lawsuits do not apply to wrongful death cases. This is why it is critical to hire a law firm that specializes in wrongful death cases. It is not just about knowing or learning about the differences. As a result, it is necessary for the family’s wrongful death attorney to have mastered how to handle case.

Why Wrongful Death Cases Cost More to Bring

More expert are needed in wrongful death cases.  Namely, one type of expert is needed to quantify in money terms the value of the various elements of damages, listed above.  Secondly, an economist is frequently employed to bring to a present value the amount of compensation the jury should award.

Experts cost money.  It is important to know the best experts to use for a wrongful death case.  It is also important to know the best way to present such experts.

Frequently Asked Kansas City Wrongful Death Case Questions