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Wrongful Death—Ask the Answer Man, Part III—Damages, Bankruptcy

Wrongful death refers to a claim by a plaintiff (not the victim) who seeks to recover damages for the unjust death of another caused by someone's negligent, reckless or intentional acts. There are no specific guidelines that dictate the means of death; however, wrongful death tort claims frequently occur in several circumstances:

  • Medical malpractice, especially errors in surgery, diagnosis and/or prescriptions;
  • Product defects;
  • Automobile accidents, including truck and pedestrian accidents;
  • Criminal acts such as murder, physical abuse or neglect.

 

Clayton County wrongful death attorney Shane Smith represents families who have lost loved ones in auto accidents, truck accidents, DUI accidents, pedestrian accidents or serious premises liability accidents.

 

  • How is compensation calculated in a wrongful death claim?

 

Damages in a Georgia wrongful death claim are calculated as if the victim had survived. In other words, the court calculates damages as losses sustained by the victim. Though the wrongful death claim is filed by surviving family members, the court views the family as the victim's representatives. Georgia wrongful death cases are similar to total disability cases in this way.

 

The Georgia wrongful death statute states that a claim may recover "the full value of the life of the decedent without deducting for any of the necessary or personal expenses of the decedent had he lived."

 

Georgia juries in wrongful death claims may consider the victim's life, age, health, business situation, activities and other facts relevant to the case. Jurors may also consider the victim's expected earnings during the duration of his working lifetime, his medical benefits or retirement/pension that would have been accrued, funeral and burial expenses, any expected inheritance he had not yet received and the victim's physical or mental suffering endured prior to death as a direct result of his injuries. Punitive damages may be awarded in certain cases.

 

The victim's estate holds the claim for any medical bills, pain and suffering prior to death, funeral expenses and burial charges. The estate holds the claim if the victim lived for any period of time, no matter how short, after the mortal injury. The estate also holds the claim if the victim could comprehend that his death was imminent.

Wrongful death damage awards are not subject to estate or income taxes and they are not subject to the victim's creditors' claims.

 

 

  • Can a judgment obtained in a wrongful death suit be discharged in bankruptcy?

 

Bankruptcy laws do allow discharging negligence damages. By extension, someone could be released from a judgment for wrongful death. Often bankruptcy courts will make damages arising from recklessness or gross negligence non-dischargeable while damages from an unintentional act will be dischargeable. Judgments arising from drunk driving may not be discharged in bankruptcy.

 

 

  • What happens if one law firm does not feel a wrongful death claim is justified and will not take the case?

 

The opinion of one attorney or one firm may differ from another. Attorneys may decline a case for a multitude of reasons and may not disclose all of them. It is recommended that a victim's family should obtain another opinion from a different attorney or firm if the case is initially declined.

 

You should hire an experienced Clayton County wrongful death attorney if you believe your loved one was killed due to someone else's negligence. Call the Law Offices of Shane Smith for a free consultation.


Shane Smith
Advocate for the Seriously Injured in Georgia