If you have lost someone you love in Tempe, Arizona, because they were killed by someone’s negligence or carelessness, you may have a right to a wrongful death claim. You should know up front that these kinds of claims can be arduous and stressful as much as they can be complex and technical. When filing such a claim, you will be inviting into your life aggressive claims adjusters and attorneys for the defendant. Their objective is either to prove that their insured or client did not commit the wrongful death and that your loved one was at least partially at fault for his death. Negotiating with these trained professionals is more than a headache; it is a heartache that can traumatize you even more.
It is important to find an experienced and persistent wrongful death lawyer in Tempe to advocate on your behalf. In the meantime, it will help calm your anxiety to have an informed understanding of the claims process and what you might expect to attain from it.
- 1 Who can file a wrongful death action in Tempe, AZ?
- 2 Do I file a claim or lawsuit for wrongful death?
- 3 What determines if I can succeed at a claim?
- 4 How can you determine what your wrongful death lawsuit is worth?
- 5 How to determine the value of the wrongful death action?
- 6 Is there anything that can increase the value of the wrongful death claim?
- 7 Is there anything that could decrease the value of the wrongful death claim?
- 8 Contact our wrongful death lawyer in Tempe, AZ
Who can file a wrongful death action in Tempe, AZ?
Arizona restricts eligibility for persons who can file a wrongful death action to the following beneficiaries:
- Surviving spouse
- Surviving child(ren)
- Guardian; or if none of the above
- Representative of the Deceased Person’s estate
If you fall into one of the above categories, you can file a wrongful death action. You cannot file a wrongful death action in Arizona if you are a sibling, extended family member, romantic partner, same-sex partner.
Do I file a claim or lawsuit for wrongful death?
Many confuse a claim with a lawsuit. A claim is an action made with the at-fault party’s insurance company. A lawsuit is an action taken through the court system and often involves a suit against both the insurance company and the insured or wrongdoer(s).
In many wrongful death cases, the at-fault party is insured. It could be an entity’s insurance, or a person’s homeowner, rental or auto insurance. The basic 5 phases of the claim process are as follows:
- Evidence Gathering. Gather the evidence that supports your claim, which would include your claim that (1) your loved one was wrongfully killed through the negligence of the other party; and (2) your suffered due to the loss. Evidence will include medical records for both the decedent and you (if you had to be hospitalized or see a healthcare professional due to grief, depression, other), photographs, statements by expert (e.g., therapists) and non-expert witnesses (e.g., employer, friends).
- Finding an Attorney. This step will overlap with the first step. Evidence disappears the longer you wait to investigate, so you want to immediately start preserving evidence. That said, you are exhausted and still grieving, so you will forget things or put it off until tomorrow. Tomorrow, though, may not come. By hiring a lawyer as soon as possible, you lessen the likelihood of the evidence disappearing. An experienced attorney in Tempe, Arizona, will know what to look for and what to do to find it.
- Preparing the demand letter. The attorney, if you hire one, will prepare the letter. This letter is fundamental to recover a just and fair settlement without having to go to court. The attorney will use the evidence and legal precedent and theory to argue a claim. The letter must be flawless because claims adjusters are trained to rip it apart and find fault on the part of the decedent in order to reduce a settlement.
- The Waiting Game. Your attorney will issue a deadline for a response to your demand letter. Once the letter is sent, you will wait to hear back from the claims adjuster. When the insurance company responds, it will do so with (1) acceptance of the demand; (2) a counter-offer; or (3) a denial.
- Negotiating. If negotiations breakdown or the claim is denied, your attorney will talk to you about a lawsuit. Litigation can be a very time-consuming and expensive endeavor. If you win, your time is well spent, but if you lose, it could set your emotional state backward. Lawsuits can be unpredictable, and you must go into it knowing there are no guarantees.
A lawsuit is much more complicated. In sum, a lawsuit consists with a Complaint filed in court and served on the defendants and then it ends in a settlement, trial, or arbitration (e.g., if the decedent had an arbitration agreement with the defendant, then an arbitrator will hear the case). The following are the basic 5 phases of a lawsuit:
- Filing & responding to a Complaint/Writ of Summons. Filing a Complaint with the appropriate court commences the lawsuit. Once the defendants are served, they will file a response to the complaint. If no one responds, the court may enter a default judgment.
- Discovery process. During this phase, the attorneys and parties “discover” information about the case. Interrogatories will be issued, and the recipients must answer a set of questions. Depositions to interview witnesses and requests for production of documents will also take place during this time.
- Pre-Trial period. After the discovery phase, there is a pre-trial settlement conference. Parties will negotiate and determine if they can come up with a settlement. If not, this period will be used to educate the judge on the case via conferences and/or pleadings.
Note: settlement talks can take place any time, even when and/or after the trial starts.
- Trial. The parties go to trial. Each side presents its case to the judge and jury, or alternatively, an arbitrator. A judgment will be rendered once the case has been tried and the jury has delivered its verdict.
- Appeal. If either party is unhappy with the verdict, it has the right to appeal.
How do I know if I should file a claim or lawsuit? You will likely file a claim first; almost all cases are settled during the claims process. The court is often reserved for those cases that are more complex or where the stakes are high for both parties.
What determines if I can succeed at a claim?
Successful claims or lawsuits are dependent on 4 elements: (1) duty of care; (2) breach of duty; (3) causation; and (4) damages. If these elements are clearly established and linked, you have a case that has excellent chances of settling via a claim.
To understand these terms, below are three examples to help you identify and compare the example to your present situation.
- All automobile drivers owe a duty of care to drive safely, follow the rules and keep the car under control to keep the roads safe for other drivers on the road and their passengers and to keep bicyclists and pedestrians safe when they either commute alongside or sharing the road. If a driver texts, loses momentary control of the car and swerves to get it back within its line only to strike and kill a bicyclist, the driver breached his duty of care. The driver was negligent by texting and taking the eyes off the road. There is a clear link between the negligence, the breach of duty and death that resulted from it and the damages you seek.
- Healthcare professionals owe a duty of care to their patients. If a physician makes a mistake, for instance, fails to diagnose cancer within reason, then the doctor may have committed negligence and caused irreparable harm to the patient, and the patient dies because the cancer is too far advanced to treat. There is a clear link between the negligence, the breach of duty and death that resulted from it and the damages you seek.
- A manufacturer of automobiles owes a duty to its customers to provide safe vehicles using modern safety equipment and technological advancements. If a customer is in an accident and the airbag installed in the car fails to deploy and death results, the manufacturer has breached his duty of care. There is a clear link between negligence, the breach of duty and death that resulted from it and the damages you seek.
How horrible the death had no bearing on the success of a claim or lawsuit. The primary factors that determine success are the three elements listed above.
How can you determine what your wrongful death lawsuit is worth?
A wrongful death claim arises when someone dies as a result of the negligence of another. Usually, the way death occurs does not affect the value of a wrongful death claim, except in cases of severe recklessness or bad conduct on the part of the person who caused the death. For instance, if a person died in a motor vehicle accident, the value of their claim would be the same as if the same person died due to medical malpractice. However, there are factors that can impact the value of a case which is unrelated to whether the death was caused by another motorist, a physician at a hospital, or the manufacturer of a dangerous product.
How to determine the value of the wrongful death action?
There are several factors that go into the calculations that determine the value of the wrongful death claim.
- Was the death solely the fault of the other party or defendant? In Arizona, the pure comparative negligence doctrine is followed. If the decedent was at fault at all for her death, then the amount to which the decedent was at fault is the amount that will be deducted from the final compensation package.
- Was the decedent married and/or have minor dependents? The more beneficiaries there are who are dependent on the decedent, the more the amount of the compensation.
- What income was and will be lost or what was the earning capacity of the decedent? Income is particularly important if there were a number of dependents who depended on that income and are now at a serious loss. The value of potential promotions and current or future benefits, such as health insurance or paid time off, will also be considered.
- Did the decedent first suffer a personal injury that led to his or her death? If so, was he or she in pain throughout that time? If the decedent suffered additional pain before death, then that pain and suffering will be valued and figured into any compensation that goes to the decedent’s estate. It will matter how extreme that pain was and how long it lasted.
- What were the funeral and other expenses related to expenses associated with the death and burial of the decedent? The medical bills incurred to try to save the life of your loved one are compensable as well as the costs associated with a funeral.
Is there anything that can increase the value of the wrongful death claim?
Many factors are already mentioned above, but in short, these factors could include any of the following:
- Any recklessness or maliciousness involved with the wrongful death could increase the compensation in the form of punitive damages.
- An insurance company wants to protect itself and its interests, and as such does not want to pay out to a victim or claimant. There have been cases that insurance companies have acted in bad faith and were irresponsible when it handled a claim. If this kind of activity is found, it could increase your compensation in the form of punitive damages.
- Having the wrongful death action handled by an effective wrongful death lawyer whose experience has taught him how to maximize the value of wrongful death claim is always a factor that could lead to fair and full compensation.
Is there anything that could decrease the value of the wrongful death claim?
Just as there are factors that will increase a claim, there are factors that can decrease it. The primary factor is one already mentioned above: if the decedent was partially at fault then the compensation will reflect the percentage the decedent was at fault. Other factors include the following:
- Inadequate insurance coverage will result in reduced compensation unless you sue the actual person, but then that person, too, may not have enough funds to cover the full value of the compensation.
The decedent’s life would have been shortened regardless of the wrongful death injury because of a medical condition.
- The decedent suffered no pain and suffering, or you can’t prove you suffered.
- The decedent was unemployed and had little capacity to earn either due to education or disability.
- Hiring an attorney who is not experienced in wrongful death matters or who simply don’t have the skills and resources necessary for such complicated matters.
Contact our wrongful death lawyer in Tempe, AZ
Nathaniel Preston is a compassionate personal injury attorney in Tempe, AZ. He understands the emotional and financial toll a wrongful death case can have on his clients. If you have lost a loved one through the negligence or carelessness of another person or entity and are eligible to file a lawsuit, you can trust personal injury lawyer Nathaniel Preston. He prioritizes helping clients receive the legal attention and compensation that is fair and just for their specific cases. He offers legal services in Tempe, Arizona, and throughout the greater Phoenix area community.