Posts Tagged ‘Wrongful’

Spinal Cord Injuries: The Devastating and Far Too Common Personal Injury | Washington Wrongful Death and Serious Personal Injury Lawyer

March 19th, 2010
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Spinal Cord Injuries, or SCIs, are one of the most common, and most debilitating personal injuries that result from auto accidents. These injuries not only can severely limit an individual’s range of motion, but can also cause paralysis. While spinal cord injuries can be the result of many different things, car accidents are often the cause.  More specifically, 44% of SCIs are the result of some sort of auto accident. Slip and fall accidents at 22% and sport-related accidents at 8% are the next most common.

There are approximately 450,000 people in the United States with some form of a Spinal Cord Injury. Each year, there are about 10,000 new SCIs with the majority of them being caused by auto accidents.

Spinal Cord Injuries can be separated into two categories: complete and incomplete. A complete injury means that there is no sensation, no voluntary movement and, sadly, no function below the level of the injury. An individual with an incomplete SCI will have different symptoms which might include the ability to move one limb more than another, they may feel parts of the body that can’t be moved or they may have more functioning on one side of their body than the other. Clearly both categories are life changing and extremely unfortunate, especially when caused by someone else’s carelessness or negligence in an auto accident.

The truth of the matter is that Spinal Cord Injuries are very common and often are not the fault of the injury victim.  When dealing with a Spinal Cord Injury, an injury victim must cope with the serious physical effects and also other things that will no doubt change an individual’s everyday life. Most likely the injury victim will require lengthy and expensive hospitalization and care. Rehabilitation will be needed to some extent to help the recovery process. Spinal Cord Injuries often cause symptoms that will temporarily, or permanently affect a person’s ability to earn an income. In addition, there is the pain and emotional damage that they and their family and friends will face for the rest of their lives.

As stated before, SCIs are very serious and very difficult to recover from in more ways than one. If a Spinal Cord Injury was caused by someone else’s negligence in an accident, whether that be car, motorcycle, bicycle or pedestrian, an individual should receive all of the help and reimbursement that they deserve.   With the assistance of a professional and experienced personal injury attorney, Spinal Cord Injury victims can hold the responsible person accountable and receive justice for their loss.

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The Pre-Litigation Or Claims Process For Washington State Wrongful Death Cases

March 7th, 2010
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Obviously, losing a loved one in an accident is tragic and there is nothing that can be done to bring the person back. The last thing on your mind during a difficult time like this is the question, “How much should I be compensated for the loss of my loved one’s life?” To many, putting a dollar figure on someone’s life is both impossible and distasteful. Even so, Often times,, the only justice that can be achieved under the law for such a tragic loss is an award of compensation. In some cases, justice can come in the form of criminal charges filed by the state, but I see manywrongful death cases where the defendant’s conduct is fairly egregious and no criminal charges are ever filed for a variety of reasons. While the award that comes from a wrongful death suit will never bring the loved one back to life, in my work with families pursuing wrongful death claims, I often see that achieving a measure of justice helps families move forward in their grieving process.

Following a wrongful death in Washington, you may have been appointed as the personal representative to handle the estate. Your job may be to look out for the interests of the surviving children and/or the spouse. As the personal representative, you have a legal obligation to represent the best interests of the deceased person’s estate for the benefit of each beneficiary (e.g., child and spouse). This includes the obligation to pursue and/or file a wrongful death case if the facts support such a claim.

If a wrongful death claim does exist, then you are often dealing with the insurance claims process. More often than not, this is a minefield that is likely unfamiliar territory. In order to be successful at fulfilling your legal obligation as a PR, you must take this process very seriously on behalf of the deceased’s estate if you want to secure the family’s financial future.

Once a wrongful death occurs, the insurance claims process usually begins immediately. This means the personal representative and/or surviving family members must take immediate action. This action may include preserving all of the evidence from the accident, hiring experts to inspect any vehicles and/or the accident scene, and obtaining witness statements. Many times, important evidence will be lost if action is not taken immediately. For instance, vehicles may need to be preserved to ensure that important evidence can be examined by experts at a later time. If there is a dispute as to the facts of an accident you will need to make sure that the at-fault party does not destroy any critical evidence or information. The insurance company is looking out for its interest, which makes it very important for you to look out for the interests of the estate and surviving family members. Make no mistake – what the insurance company wants and what is best for the estate and family members are not the same thing.

Although the police may conduct an investigation into a fatal accident, like a motor vehicle accident that causes death, their investigation materials may not be available for a long period of time. The police investigation may not be thorough, or it may not address or include certain issues or questions that may be important or relevant in a subsequent wrongful death case brought by the deceased’s family. Sometimes, the police may not document critical evidence because it is not what they are looking for, or because they are focusing on a criminal prosecution and not a civil wrongful death action. The evidence that is important in a civil wrongful death case may not be the same evidence that is important or relevant in a criminal prosecution.

Every available piece of information should be gathered and kept so that it can be reviewed at a later time, either by an expert or an attorney. Experts know what evidence to collect, how to preserve it, and how to evaluate the importance or relevance of that evidence. Procrastination or lack of follow-through is usually the enemy in a wrongful death case because evidence can be lost or destroyed and this may impact the likelihood of a successful result.

Seattle wrongful death attorney Chris Davis is the author of ‘Wrongful Death in Washington State’ a guide book for families that are trying to navigate the confusing legal process following the accidental death in Washington State of a loved one. He is the founder and principal lawyer at Davis Law Group, a Seattle personal injury law firm know for its innovative approach. You can learn more by visiting: www.DavisLawGroupSeattle.com.

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Overview Of Washington State’s Wrongful Death Laws – Part Two

March 7th, 2010
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The courts have also stated that the surviving parent or sibling need not be wholly or completely dependent on the deceased. Partial dependence has been deemed sufficient. But there must be enough evidence to prove “substantial financial dependence.” The financial dependence must also occur at the time of death, as opposed to having occurred in the past or to occur at some point in the future.

In the case of second-tier beneficiaries, the question of what constitutes substantial financial dependence on the deceased is a factual issue. There are no hard and fast rules here, but usually substantial financial dependence may occur when the deceased was paying or contributing to a portion of the parent’s or sibling’s living expenses. However, the courts have stated that certain services provided by the deceased that one would expect to be provided by a family member may not be enough to show substantial financial dependence. This might include contributing to a common household where all family members reside. The courts have also held that “emotional” dependence is not enough, either. Without evidence of substantial financial dependence, the court will almost certainly dismiss the wrongful death action for failing to comply with the specific terms of the statute.

Washington’s wrongful death statute can produce some very unjust results. For example, take the situation in which the person wrongfully killed is an adult who is unmarried and has no children. Even if the deceased had a close and loving relationship with his/her parents and siblings, the family could not recover damages in a wrongful death action unless they were also financially dependent on the deceased. It is safe to assume that the majority of single adults without children do not financially support other family members. So when a wrongful death occurs in this type of situation, no recovery can be made on behalf of the surviving relatives, no matter how egregious the conduct that led to the person’s death. Even so, the death of an unmarried person with no children is no less painful or devastating to a surviving parent or sibling not receiving financial support than it is to a parent or sibling who was being supported by the deceased.

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See Mitchell v. Rice, 183 Wash. 402, 48 P.2d 949 (1935).

One exception to the “financial dependence” requirement is when the decedent is a minor child. In that situation, the surviving parents may bring a wrongful death action for the destruction of the parent-child relationship. However, to recover damages the parent must show that he or she contributed to the financial support of the child. This is discussed in Chapter __.

See Philippides v. Bernard, 151 Wn.2d 376, 88 P.3d 939 (2004).

Seattle wrongful death attorney Chris Davis is the author of ‘Wrongful Death in Washington State’ a guide book for families that are trying to navigate the confusing legal process following the accidental death in Washington State of a loved one. He is the founder and principal lawyer at Davis Law Group, a Seattle personal injury law firm know for its innovative approach. You can learn more by visiting: www.DavisLawGroupSeattle.com.

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What Is Wrongful Death: Establishing Negligence In Washington State

March 6th, 2010
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A wrongful death is one that is caused by the negligence or wrongful act of another. A wrongful death case refers to the type of claim that may be brought on behalf of certain surviving relatives to recover compensation against the party responsible for causing that death. Specifically, Washington law defines this cause of action as the death of a person “caused by the wrongful act, neglect, or default of another.”

A wrongful death occurs when a person dies as a result of the wrongful or unlawful conduct of another person or entity. The wrongful conduct can be intentional (e.g., assault or murder) or unintentional (e.g. carelessness, negligence or malpractice). Of course, an individual person can cause a wrongful death. But a nonperson, like a corporation or governmental entity, can also be legally responsible for a wrongful death. For instance, if a person causes another’s death while on the job, this may give rise to a wrongful death claim against that person’s employer as well.
When a wrongful death occurs, Washington law states that only certain designated surviving relatives may pursue a cause of action against the responsible party. If these relatives do not exist, a wrongful death action may be pursued only on behalf of the estate (but the damages which may be recovered are limited). This will be explained further in the chapters that follow.

To understand a wrongful death claim, you must also understand the principle of negligence. Most wrongful death claims are based on the wrongful act of negligence committed by the responsible party. The term “negligence” is simply defined as “the failure to exercise ordinary care under the same or similar circumstances.” Thus, to prove a wrongful death claim, you must show that the person who caused the death was acting careless in some way.

Sometimes, it can be fairly easy to determine whether a person was negligent and that the negligent conduct caused another person’s death. For example, many wrongful death cases involve automobile accidents. A driver who causes another person’s death by violating a traffic law (e.g., running a stop sign or crossing the center line) is negligent for being careless in that specific situation. As a result, a wrongful death claim may be pursued against that driver because his negligence caused the death of another person.

Sometimes, it can be more difficult to determine whether someone’s death was caused by negligence. For instance, in a medical negligence case, the question of whether a physician acted carelessly may be more complex and difficult to determine. In this type of case, the law usually requires that another physician give an expert opinion about whether negligence has occurred.

It is important to note that a finding of negligence against the wrongdoer is just one element that must be met before a wrongful death case may be successful. Other requirements may include the existence of a proper wrongful death beneficiary (e.g., a designated surviving relative like a spouse or child) and that certain damages have been incurred.

Seattle wrongful death attorney Chris Davis is the author of ‘Wrongful Death in Washington State’ a guide book for families that are trying to navigate the confusing legal process following the accidental death in Washington State of a loved one. He is the founder and principal lawyer at Davis Law Group, a Seattle personal injury law firm know for its innovative approach. You can learn more by visiting: www.DavisLawGroupSeattle.com.

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Washington’s Attorney General is Wrong to Oppose New Wrongful Death Bill

February 28th, 2010
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Surprisingly, Washington State’s Attorney General Rob McKenna opposes the new wrongful death bill which would give adult parents the legal right to sue and recover damages for the wrongful death of an adult child (age 26 and younger). Mr. McKenna’s primary argument is that the new bill will cost the state of Washington more money because there will be more cases filed against the state in cases where an adult person who is unmarried and child-less (between the ages of 18 and 26) is wrongfully killed due to the negligence of another individual or corporation or state agency. Mr. McKenna makes certain erroneous assumptions to support his argument against this new bill. I’ll explain:

There are serious problems with McKenna’s assumptions. First, wrongful deaths caused by governmental negligence make up a very small portion of all cases. Most wrongful death cases involve private parties (e.g., auto accidents, medical negligence, construction accidents, etc.). Therefore, McKenna’s argument that this bill will cause the state to pay out much more money is just plain wrong. Sure, there may be a few cases more against the state, but not so many cases that will cause the state to pay out annually millions and millions of more dollars.

McKenna makes another wrong assumption. He states that the change in law will take money from a surviving spouse and the surviving children. Not true. Under the current law there are 2 tiers of beneficiaries who are authorized to bring a wrongful death claim. The first tier is the surviving spouse and children. The second tier is surviving siblings or parents who are financially dependent on the deceased. If there are 1st tier beneficiaries, then a 2nd tier beneficiary cannot pursue a claim. In that situation, the wrongful death action belongs to the 1st tier beneficiaries.

The 2nd tier beneficiaries can only pursue a claim for wrongful death if there no 1st tier beneficiaries. But even then, the 2nd tier beneficiary must show that he or she was financially dependent on the decedent at time of death- a fact that almost never occurs. The courts have also ruled that the financial dependence must be “substantial.” Simply put, most adult siblings are not substantially dependent on each other for financial assistance. And most parents are not financially dependent on their children. As the law stands now, most wrongful deaths of single adults with no children are never prosecuted or filed in court. There simply is no recovery allowed to surviving relatives in that type of case. The new law attempts to correct that blatant injustice.

Another fact that McKenna neglects to discuss is that 47 other states have already enacted a similar wrongful death law. This means Washington’s current wrongful death statute is arcane and outdated. The current law was actually enacted in the late 1800′s. The law is actually one of a minority of states (3 to be exact) that have not amended their wrongful death law to address current societal norms, as well as recognize changes in the family unit. It is hard to believe that McKenna advocates that Washington remain one of just 3 states to keep a law that was enacted more than 100 years ago.

Another problem I have with McKenna’s position is that he is supposed to be the state’s top legal representative. He is supposed to protect the rights of all citizens in this great state. I find it difficult to swallow that McKenna would place the interests of our state’s tax coffers ahead of those families who must experience the devastating loss of a loved one due to the wrongful conduct of another, including those deaths caused by state employees. McKenna is simply putting the interests of state government ahead of the rights of citizens in our state who have suffered one of the worst losses anyone can experience: the death of a family member or child.

As it stands now, if an unmarried and child-less person is wrongfully killed due to a corporation’s negligence, no claim can be pursued by the parents (unless the parents can show financial dependence). The changes to the wrongful death law will correct this injustice. It will remove the required showing of “financial dependence” and replace it with “significant involvement” with the deceased. Again, if the deceased is married or has children, then no one else can recover – just like the current law.

Here’s a perfect example of the injustice of the current law. A mother and father recently contacted me about the death of their 19 year old son who was killed in a traffic accident caused by another driver. That driver’s insurance company refused to pay out any reasonable compensation (other than the cost of the funeral) to resolve the claim. The insurance adjustor noted, correctly I might add, that Washington does not permit parents to recover for the death of an adult child. As a result, the insurance company was allowed to save $500,000 – the limit of the insurance policy. Now, how injust is that? The parents of course are devastated at the loss of their child. Then they experience a punch in the gut after learning their son’s death isn’t even worth a paltry $500K – paltry considering the magnitude of the loss.

McKenna’s position in opposition to the wrongful death bill is just plain wrong. Mr. McKenna, will you please do your job and focus on the rights of all citizens and not just focus on how much money the government will lose if it is forced to live up to its responsibility of wrongfully killing a human being? The citizens of Washington state deserve nothing less.

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Washington State Wrongful Death Claims

February 27th, 2010
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Wrongful death claims in Washington State are complicated and are often very expensive to pursue. They require a thorough understanding of Washington’s complex wrongful death statute, the laws of probate and estates, and the case law decisions that have developed for these types of claims over many years. The expense of a wrongful death case can also be quite high. Many times wrongful death cases require expert testimony in many different fields of study. It may be necessary to hire numerous experts to prove various elements in the case and/or to improve the likelihood of a successful outcome. For these reasons, you will want an attorney who is experienced in handling wrongful death cases and who also has sufficient resources to pursue the case all the way to trial, if necessary.

Wrongful death cases also receive special attention from insurance companies. Usually, the most highly experienced and trained adjustor is assigned to the wrongful death case in an effort to either completely avoid responsibility for the death, or to minimize the amount of compensation that the carrier must pay to resolve the claim. Dealing with a trained insurance adjustor without the guidance of an experienced wrongful death attorney is not a level playing field. If you are now dealing with the aftermath of losing a loved one, then you may be suddenly faced with problems that require immediate attention, like: -The need to arrange and pay for a funeral -Starting a probate action and/or hiring a reputable probate and estate lawyer -Addressing claims by healthcare providers to pay medical bills -Making sure there is enough income to take care of basic living expenses for surviving family members -If there are children, making sure the needs of each child are being met -If life insurance exists, then meeting the claim requirements of the carrier -Addressing the legal repercussions of a claim that may exist

As a surviving family member, you have the right to hold the negligent party accountable for their actions, and may be able to recover damages due to your loved one’s death by filing a Washington wrongful death lawsuit. The damages you may be entitled to may include compensation to pay for medical bills, funeral expenses, loss of wages (possibly future estimated losses), and pain and suffering.

Every case in Washington is unique and involves elements which must be thoroughly examined and investigated, which is why it is imperative that you hire a Seattle wrongful death lawyer who is skilled in the area of Washington wrongful death law.

Seattle wrongful death attorney Chris Davis is the author of ‘Wrongful Death in Washington State’ a guide book for families that are trying to navigate the confusing legal process following the accidental death in Washington State of a loved one. He is the founder and principal lawyer at Davis Law Group, a Seattle personal injury law firm know for its innovative approach. You can learn more by visiting: www.DavisLawGroupSeattle.com.

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Overview Of Washington State’s Wrongful Death Laws – Part One

February 26th, 2010
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The state of Washington has two main statutes that govern wrongful death actions. There is a general wrongful death statute and one that specifically applies to a parent’s cause of action for the death of a child. In addition, there are statutes that address survival actions (e.g., to recover those damages the deceased could have claimed had the deceased survived). To some extent, these laws may overlap, particularly when a cause of action may include facts to support different theories of liability and different elements of damages. This chapter will address Washington’s general wrongful death statutes.

Under Washington’s general wrongful death statutes, an action may be brought on behalf of the deceased’s estate and for the benefit of certain designated surviving relatives, also called “statutory beneficiaries” (because they are designated by the wrongful death statute). If there are no designated statutory beneficiaries, then the deceased person’s estate may pursue a claim in limited circumstances but only certain economic damages are recoverable (e.g., future lost earnings, medical expenses, etc.).

The Washington legislature created what is called a “two-tiered” system of beneficiaries who may recover damages for the wrongful death of a person. This means that there are two levels of certain designated surviving relatives that have legal authority to recover damages caused by the death of a loved one. In the first tier, the wrongful death action is brought for the benefit of the deceaseddeceased’s surviving spouse, registered domestic partner, and/or children or stepchildren. If these survivors do not exist (i.e., the deceased was single and without children), then the claim may be brought on behalf of second-tier beneficiaries. (See below for examples of second-tier beneficiaries.) If both first-first tier and second-tier beneficiaries exist, then the wrongful death action is limited for the benefit of first-tier beneficiaries only.

In the case of a surviving spouse, that spouse must have been legally married to the deceased at the time of death. Historically, this meant that a surviving cohabitant or domestic partner could not recover damages for the wrongful death of a live-in partner. However, the wrongful death statute was recently amended to allow a surviving domestic partner to maintain a cause of action if the domestic partnership was registered with the state of Washington before the date of death.

The second-tier of wrongful death beneficiaries include surviving parents or siblings, but only if they were financially dependent on the deceased for support at the time of death. The Washington courts have determined that a surviving parent or sister/brother may only recover compensation if they were substantially dependent on the deceased for support. This means that unless the single and childless deceased was supporting a parent or sibling at the time of his or her death then no recovery can be made by any surviving relative.

Seattle wrongful death attorney Chris Davis is the author of ‘Wrongful Death in Washington State’ a guide book for families that are trying to navigate the confusing legal process following the accidental death in Washington State of a loved one. He is the founder and principal lawyer at Davis Law Group, a Seattle personal injury law firm know for its innovative approach. You can learn more by visiting: www.DavisLawGroupSeattle.com.

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