Have you lost a loved one due to negligence?

In Texas, a wrongful death occurs when someone's actions lead to the death of another person. The statutory beneficiaries of the deceased person (who are the spouse, children, or parents of the deceased person) may be eligible for compensation due to their loss. Wrongful death cases can arise from a variety of situations, including wrecks involving 18-wheelers or other commercial vehicles, drunk driving incidents, premises liability, and other types of accidents.

There is no fixed or standard amount for the value of a wrongful death case in Texas. The compensation awarded in such cases depends, among other things, on the specific details of each case and the insurance coverage available to pay for the damages caused by the bad actor’s conduct.

The Texas Wrongful Death Act provides that an action to recover damages for wrongful death belongs exclusively to the surviving spouse, children, and parents of the deceased person (who are sometimes referred to as “statutory beneficiaries”). The surviving spouse, children, and parents of the decedent may bring the wrongful death action or one or more of those individuals may bring the action for the benefit of all. However, if none of the statutory beneficiaries have begun a wrongful death action within three months of the injured person’s death, the executor or administrator of the decedent’s estate is authorized to bring the wrongful death action unless requested not to do so by all of the decedent’s statutory beneficiaries.

Children of any age can file for damages under the wrongful death law. Both biological and legally adopted children can bring a wrongful death claim. However, an adopted child cannot bring a suit for the wrongful death of a biological parent. Unfortunately, siblings, grandparents, and other close relatives cannot file wrongful death claims under any circumstances for the loss of a loved one. “Significant others” cannot file a wrongful death lawsuit because Texas does not recognize non-marital relationships for wrongful death claims. However, if the “significant other” can establish that he or she was the common law spouse of the decedent, they would be entitled to bring a wrongful death action. Additionally, in blended family situations where there have been no formal adoptions, stepparents do not have wrongful death claims for the death of their stepchildren and stepchildren do not have wrongful death claims for the death of their stepparent.

A wrongful death lawsuit is initiated like any other lawsuit. The lawyer prepares a document entitled either Plaintiff’s Original Petition (if filing in a Texas state court) or Plaintiff’s Original Complaint (if filing in Texas federal court). This document sets forth the factual bases of the plaintiff’s allegations against the defendant, describes the plaintiff’s damages, and sets forth the legal theories under which the plaintiff believes the defendant is liable. The document will then be filed in the appropriate court depending on the factual circumstances of the cases such as what happened, where things happened, and where the defendant lived, resided, or had its place of business at the time of the allegedly wrongful actions leading to the death of the loved one. An experienced personal injury lawyer will handle all of these “filing details” on your behalf.

There are two statutes of limitations to consider in wrongful death actions: one for the decedent’s underlying claim and one for the beneficiary’s wrongful death claim.

The decedent’s personal injury claim must be filed within the appropriate limitations period, which for most personal injuries is two years. If no lawsuit had been filed at the time of the decedent’s death, and the limitations period for the underlying claim has expired, the wrongful death lawsuit is barred. For example, if the decedent was seriously injured by the negligence of a driver of an 18-wheeler but survived for three years before dying and did not file suit before dying, the decedent’s statutory beneficiaries cannot file a wrongful death action.

But if the decedent filed a personal injury lawsuit within two years of being injured by the 18-wheeler, the decedent’s statutory beneficiaries have two years from the date of the decedent’s death to file a wrongful death claim based on the decedent’s suit. This is because statutory beneficiaries must file a wrongful death claim within two years from the date the claim accrues, usually the date of the decedent’s death. Because the Wrongful Death Act permits an action by the decedent’s beneficiaries “only if the individual injured would have been entitled to bring an action,” an action accrues only if it exists at the time of the decedent’s death (i.e., if the limitations period for the decedent’s claim has not expired at the time of the decedent’s death). There could be different accrual dates in wrongful death actions in cases involving asbestos and silica-related injuries or healthcare liability claims. Therefore, if you believe you have a wrongful death claim based on the death of a relative, you should consult a lawyer as soon as practicable to ensure that your potential claim is asserted on a timely basis.

In a wrongful death suit, the party responsible for the person's death can be held liable for damages caused by their wrongful conduct. The Texas Wrongful Death Act provides that a “person is liable for damages arising from an injury that causes a person’s death if the injury was caused by the person’s or his agent’s or servant’s a wrongful act, neglect, carelessness, unskillfulness, or default”. For instance, if someone dies in a car wreck caused by a negligent driver, the at-fault driver could be held responsible for damages resulting from the fatal collision.

Texas law allows the statutory beneficiaries of the decedent to recover from the at-fault party for their own damages resulting from the death of their loved one. There are four basic types of damages recoverable in a wrongful death action: (a) pecuniary losses; (b) mental anguish; (c) loss of companionship and society, and (d) loss of inheritance. Pecuniary losses are defined as the loss of the decedent’s earning capacity, advice, counsel, services, care, maintenance, and support, and may also include funeral expenses of the decedent actually paid by the statutory beneficiary bringing the wrongful death claim.

You might find exceptions, but most lawyers handling personal injuries are paid by their injured clients on a contingency basis. A contingency fee payment arrangement is when the lawyer only gets paid if the client obtains a recovery for the client’s damages. The lawyer takes a percentage of the compensation the client receives as the fee for the lawyer’s services (in addition to the reimbursement of any out-of-pocket expenses incurred by the lawyer in working up the case). This agreement means that the lawyer shares the risk with the client that the case might not be successful. It is a legally binding contract between the lawyer and the client and is commonly used in personal injury cases, including cases seeking recovery for a wrongful death. You should always take time to review a proposed contingency fee agreement before you sign it and ask the lawyer you are thinking of hiring any questions you may have about it before you agree to sign it. While the exact details contained in contingency fee agreements may differ from law office to law office, the basic terms of such agreements are similar in most instances.

There are significant differences between survival actions and wrongful-death actions with the most significant difference being that wrongful-death plaintiffs recover damages for their own injuries, while survival plaintiffs recover damages for the injuries suffered by the decedent. The Texas Survival Statute abolished the common law rule that a cause of action for personal injury is erased when the injured person dies. Under the Survival Statute, an heir or representative of the estate is allowed to pursue the decedent’s personal injury claim. The Survival Statute does not create a new cause of action; it merely allows the decedent’s causes of action to survive the decedent’s death. The elements of a survival action are the following: (a) the plaintiff is the legal representative of the decedent’s estate; (b) the decedent had a cause of action for personal injury to the decedent’s health, reputation or person before dying; (c) the decedent would have been entitled to bring an action for the injury if the decedent had lived; and, (d) the defendant’s wrongful act caused the decedent’s injury.

The Texas Wrongful Death Act, codified in Texas Civil Practice & Remedies Code §§71.001 through 71.012, enables family members to take legal action to seek recovery for their own damages when someone causes the death of a loved one.

In many cases involving wrongful death claims and survival actions, a settlement is reached before a trial takes place. This is because both sides may try to avoid the risk of a negative outcome and are able to reach a compromise. Once an agreement is made, there arises the question of how the settlement will be paid out. Typically, most at-fault parties in these cases have insurance. This means that unless the policy does not cover the person's wrongful acts that led to the wrongful death, the insurance company will provide a legal defense and pay for any established damages within the limits of the at-fault party’s liability policy.

Dealing with legal disputes following a difficult experience can be daunting. However, it’s difficult to predict how long a wrongful death claim will take because the length of time can depend on several factors. It can range from a few months to several years depending on the complexity of the case. While it may not be the most satisfying answer, it's crucial to have a skilled and confident personal injury lawyer on your side, no matter how long it takes. Their knowledge and experience can make all the difference in obtaining a successful outcome in your case. If you'd like to discuss your case and learn about possible outcomes, please contact GIW PLLC’s office, or complete our free case evaluation form.

The elements of a cause of action for wrongful death are the following: (a) the plaintiff is a statutory beneficiary of the decedent; (b) the defendant is a person or corporation; (c) the defendant’s wrongful act caused the death of the decedent; (d) the decedent would have been entitled to bring an action for the injury if the decedent had lived; and (e) the plaintiff suffered actual injury.

With respect to the element requiring that a plaintiff prove that the defendant’s wrongful act caused the decedent’s death, the Texas Wrongful Death Act specifically states that a defendant can be held liable for the decedent's death if the death was caused by the defendant’s (or its agent’s or servant’s) wrongful act, neglect, carelessness, unskillfulness or default. In most wrongful death suits, this element is established by proving the elements of a claim for negligence, intentional tort, premises liability, or product liability. For example, if the liability is based on negligence, the plaintiff must prove (a) the defendant owed the decedent a duty, (b) the defendant breached the duty, and (c) the breach proximately caused the decedent’s death.

In a narrow list of wrongful death suits (those involving industrial plants, common carriers, or machinery), the Wrongful Death Act specifies the acts for which a particular type of defendant can be liable.

Exemplary damages, also known as punitive damages, are awarded in cases where the defendant acted with gross negligence (which is defined as an act or omission when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others, of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others). Exemplary damages are recoverable for wrongful death when the death is caused by the defendant’s willful act, omission, or gross negligence. Only a surviving spouse and heirs of the decedent’s body can recover exemplary damages in a wrongful death case. Thus, although a parent can recover actual damages for the wrongful death of a child, a parent cannot also recover exemplary damages for the child’s wrongful death.