By: Karen Piso Nadeau, Esquire
The news makes us very aware of the tragic deaths taking place all over the world, while here in Massachusetts we hear of accidents happening locally resulting in someone’s untimely death. Usually, the person is killed in a horrific car accident. We also see deaths in the summer months arising from drownings in swimming pools or at a lake. Another place where we see tragic accidents occur is at construction sites. Over the years, I have represented the families left mourning the death of a loved one who tragically died in an accident due to someone else’s bad behavior. We call these personal injury cases wrongful death cases. Defining what these cases mean is simple to understand- the death is unfair; it is unjust; it is unlawful and undeserved.
Wrongful Death Claims & Factors Considered in Determining Value
Massachusetts wrongful death cases involve a claim against a person or entity (such as a business) who is liable or responsible for a death. This claim is usually brought by a close relative and is set forth in the wrongful death statute. The purpose of the wrongful death claim is to compensate surviving family members for the death of a loved one. The Massachusetts Wrongful Death Statute, G.L. Chapter 229, section 2 provides that a tortfeasor/responsible party should be liable for damages as follows: “in the amount of: (1) the fair monetary value of the decedent to the persons entitled to receive the damages recovered, as provided in section one, including but not limited to compensation for the loss of the reasonably expected net income, services, protection, care, assistance, society, companionship, comfort, guidance, counsel, and advice of the decedent to the persons entitled to the damages recovered; (2) the reasonable funeral and burial expenses of the decedent; (3) punitive damages in an amount of not less than five thousand dollars in such case as the decedent’s death was caused by the malicious, willful, wanton or reckless conduct of the defendant or by the gross negligence of the defendant…”
Several very sad cases I have handled come to mind where the person whose life is lost is described by who they were and what they brought to the family dynamic making their loss so incredibly devastating. When looking at these three separate cases as examples, they show the deceased victim’s value in different ways based on their title in the family, their age, and their contributions to the people who loved them and relied upon them for their happiness and life’s experiences. One case involves a mother who was struck by a truck as a pedestrian taking a walk. Another case involves a grandmother who was the family matriarch and glue. She was killed while riding as a passenger in a car. The third case involves a child whose young life was cut short by a drowning. The value of each of these lives is analyzed based on different contributions to the surviving family members entitled to recover under the wrongful death statute. The difficult question we are all asking is: how do you value a life lost? There is no right or wrong answer. Each case and each family are unique. The life stories of those dying in an accident and what they mean to those mourning their abrupt disappearance from their lives will weigh heavily in making the determination of the value of a wrongful death claim.
One of the most important things that a wrongful death lawyer can do is to really listen and learn about the family and the deceased person. Taking the time to hear from the surviving family members while looking through old family pictures and photo albums, reading through scrapbooks, reviewing thank you notes, sympathy cards, and simply knowing to ask the right questions about what made this mother, son, grandmother so special- all of these things make for powerful presentations to the insurance companies who are ultimately paying out the money on behalf of the person or entity that caused the death in the tragic accident.
Questions asked are: how has this family been profoundly affected by this loss of life? Maybe there were daily phone calls, Sunday dinners, celebrating birthdays and other special occasions. There may be the cooking, cleaning and laundry and waking someone up in the morning or tucking them in bed at night. Sometimes the life lost is the glue to the family keeping the rest of the family close and on the right track in life. Sometimes there is a loss of income to the survivors who relied on the victim for support. Other cases have no income loss at all but other contributions to the family that are no less important to those surviving. The character and strengths of the deceased person and the love of the life lost need to be shown to the insurance company in a compelling way that they will never forget.
When we represent the grieving family in a wrongful death case, we focus on the factors to consider when seeking compensation for the family. These factors are compensation for:
– the loss of the reasonably expected net income
-advice of the decedent to the persons entitled to the damages recovered.
We take the time and care to explore all these factors with the family members to obtain a complete understanding of how the loss of this family member impacted each person entitled to recover compensation. Every relationship and every family dynamic and every life story are unique. Value is different to everyone. Capturing the special moments and intimate details make for compelling presentations to the insurance company who place a value on this devastating loss.
As part of building the case, we consider the need for experts such as accident reconstruction experts who recreate how an accident occurred or economists who determine the value of a deceased person’s future lost earnings. We also consider the need for testimonials from those left behind whereby we hire an experienced videographer who helps us prepare and produce a video showing the life story of the person who passed away and the impact on those left behind. Our clients feel comfortable and at ease knowing we are there with them every step of the way and fully prepare them for everything that may be involved with the case. All of this is with one goal: to obtain the compensation the family needs and deserves to move on with their lives without the person who was taken away too soon.
Another component of recovery is the burial and funeral expenses. The receipts for such expenses are part of the package sent to the insurance company deciding the value to place on the wrongful death case.
Life expectancy of the victim who died is important to consider. However, Massachusetts wrongful death cases demonstrate that a wrongful death case for older individuals can have significant value. There are multi-million-dollar cases for individuals who died in their 60’s, 70’s 80’s.
Conscious Pain & Suffering Claim
Another claim that may exist when an individual suffers a fatality in an accident is a claim for conscious pain and suffering. When a loved one does not die immediately and suffers from life ending injuries, the estate is entitled to be compensated for the conscious pain and suffering the loved one endured before passing away. This is separate and apart from the wrongful death claim.
The first responder reports such as police and fire reports, ambulance records, emergency room records, and other medical documentation are analyzed in determining the merits of a conscious pain and suffering claim.
Negligent Infliction of Emotional Distress Claim
Another claim that is considered when an individual tragically dies in an accident is negligent infliction of emotional distress. Emotional distress is defined as a severe psychological shock directly resulting from experiencing or witnessing the effects of a wrongdoer’s conduct. This has been deemed not duplicative of the wrongful death statute. However, recovery has been limited to those plaintiffs/claimants who witnessed the injury or come upon the injured party at the scene of the injury or immediately after the infliction of the injury.
An example of negligent infliction of emotional distress includes witnessing the horrific accident that causes the death of a loved one. Another example of this is arriving at the hospital and witnessing the loved one clinging to life and seeing the trauma close in time to the accident before they pass away.
When I represent the families that have lost a loved one in an accident, real compassion and excellent communication lead to a trusting relationship where the families can feel at peace that their case is in exceptional hands at my firm so that they can turn to grieving, supporting their families through such a trying time, and picking up the pieces in their lives. Our clients’ questions and concerns are clearly and promptly addressed. The applicable law and decisions that need to be made are explained clearly and simply to reduce the stress and anxiety of the unknown. Our clients have the benefit of knowing they have us in their corner doing everything we can to get them the best possible outcome and the compensation they deserve for the tremendous loss of life.
When someone is injured in a wrongful death, motor vehicle accident, trip and fall, dog bite, construction site or through any other accident, a thorough investigation of the accident events is necessary to determine the cause of the accident and secure important information. As a victim of an accident, make sure everything is done to protect your interests. The lawyers at Nadeau Harkavy LLC have over 50 years combined experience helping victims and their families recover compensation in serious injury and wrongful death cases arising from car crashes and other accidents. If you have any questions about your legal rights relating to a wrongful death, car accident, pedestrian accident, motorcycle accident, bicycle accident, slip and fall, trip and fall or other accident, feel free to contact us for a free consult today at 617-674-7640.