WRONGFUL DEATH LAWYER Costa Mesa

The family can collect in a wrongful death case even if the accident is partly the victim’s fault. California law follows a pure comparative negligence standard in wrongful death claims. Under this standard, a plaintiff’s award is reduced by the percentage of fault assigned to the victim in court. For instance, if the victim is 20% at fault for a fatal auto accident and the defendant 80%, then the court awards the plaintiff 80% of the damages.

California wrongful death law requires plaintiffs to prove that the defendant(s) acted negligently or intentionally in a way that brought about an unjustified death. Accordingly, courts demand that three elements be demonstrated by the evidence's preponderance (more likely than not).  

• A Duty of Care Existed: A duty of care may be established by a specific relationship, such as a doctor’s responsibility to a patient. However, in many situations, members of the general public also owe a duty of care to one another, such as drivers’ obligation to abide by traffic laws and avoid negligent or reckless vehicle operation. 
• The Duty of Care Was Breached: Plaintiffs must show that the defendant(s) breached the duty of care through action or inaction. For instance, a driver who causes an accident by texting and driving or a doctor who neglects safety protocols. 
• The Breach of Duty Caused Unjustified Dying: To win, plaintiffs must go a step further and establish the link between the breach of duty and the death. For example, a driver could cause an accident by texting and driving, a clear breach, but if the decedent later died of a different cause, the case may not qualify as wrongful death. In another instance, a doctor may have failed to follow best practices, but a wrongful death claim may fail if the patient’s death is attributable to another cause.

Yes. California law establishes a two-year statute of limitation for wrongful death claims. The two-year period begins on the date of the decedent's passing. However, the law does provide exceptions in limited circumstances.

• The Discovery Rule Exception: Plaintiffs can petition the court to extend the statute of limitations if they were unaware of and could not reasonably expect to know that defendant(s) caused or contributed to the wrongful death. For instance, families of a person with cancer may discover that exposure to carcinogens caused the disease after the statute of limitations expired. Depending on the circumstances, a court may extend the statute of limitations.
• Medical Malpractice Exceptions: Family members have three years from when the alleged medical malpractice occurred. When medical malpractice is discovered after three years, families must bring the case within one year of obtaining that knowledge or within one year when the court rules they could be reasonably expected to know.
• Shorter Time Limits for Lawsuits Against Government Entities: California’s wrongful death statute mandates a shorter statute of limitations against government entities, such as state agencies and city departments. Families must bring the action within six months of the victim’s death. 

The time to resolve a case depends on whether it settles and at what point negotiations come to a close in the litigation process. A case that goes through a jury trial and appeals can take many years. However, most wrongful death cases settle before the trial date. Trials are necessary to resolve factual disputes between the parties; often, the facts are established, and a settlement is reached without impanel a jury.

Many cases settle after the discovery process. During discovery, attorneys use the powers of the courts to gather evidence and interview witnesses. Towards the end of this process, attorneys depose the opposing side’s witnesses. Once the discovery process is complete, the case is often more apt to settle. Many claims settle in one to two years if a trial remains unnecessary.

Wrongful death claims compensate the victim’s family. Since the decedent cannot benefit from an award, the focus is on providing family members with compensation that pays for their financial and emotional losses. Typical categories of damages in wrongful death claims include the following:

• Lost income
• Lost benefits, such as health insurance
• Pain and suffering of the family
• Funeral expenses
• Loss of relationships
• Emotional distress

Survival actions are brought by the executor of the decedent's estate on behalf of the departed. These actions claim benefits for the decedent's damages as opposed to the family’s, such as lost income, medical bills, and pain and suffering.

Costa Mesa wrongful death attorneys are paid through contingency fees, so the family never has to come up with money out-of-pocket to bring a case. Because Nordean Law attorneys provide expert legal representation and negotiate for full compensation, our fees pay for themselves. Therefore, we prepare every case for trial. Once the defendant(s) know we will win in court, they are willing to offer settlements that cover all the family’s damages, attorney’s fees, and litigation expenses.