Wrongful death is usually the most valuable type of personal injury claim. Wrongful death lawsuits can reach settlements into hundreds of thousands or millions of dollars, but they could also be much lower. As with every other personal injury claim, there is really no one way to determine how much a wrongful death case is worth, but there are guidelines.
If you have lost a loved one, we know that this can be incredibly tragic. What can be even worse is if your loved one was killed because of the actions of someone else. If that is the case, then you need the help of a highly professional wrongful death lawyer.
What Damages Are Available in Wrongful Death Claims?
Wrongful death cases are similar to most other personal injury cases in that there are certain types of damages that are generally recoverable. These damages are typically split into two categories: general and special. However, in a wrongful death action, a third category of damages is available called survival.
Special damages are damages that are easy to determine. You can think of special damages as reimbursement for something that you had to spend money on, such as medical bills and property damage, but also things like lost wages. Funeral expenses are also included in wrongful death actions.
In other words, if you have a receipt for something, or you are now without something that you can easily document, it is most likely special damages.
While special damages are damages that are easily shown with documentation, special damages are essentially the exact opposite. General damages exist to allow a jury to award damages at their discretion, meaning that general damages are awarded for vague concepts of damage rather than a concrete reimbursement.
In a wrongful death case, the most common example of general damages is loss of consortium/companionship. There is, obviously, no way to do exact math and assign a dollar amount to how much you “miss” a person. This is why the court allows the jury to use their own experiences and award a discretionary amount of money.
Survival damages are unique to wrongful death actions. The other damages, special and general, reimburse you for the damages that you suffered due to your loved one’s death. However, survival allows you to recover damages that your loved one suffered prior to their death.
For example, if your loved one was injured in an accident but did not die right away, the concept of survival damages allows you to recover damages for their pain and suffering, the same way that they would have been able to, had they survived the accident and brought the lawsuit themself.
What if My Loved One Died in a Work Accident?
If your loved one was killed in a work accident, most of the time, your wrongful death claim will come through workers’ compensation. This is because South Carolina law requires that your claim be brought through workers’ compensation when your loved one was injured or killed in a work accident. Workers’ compensation uses a specific formula to calculate the amount of damages you may receive, which depends on your loved one’s salary, and whether or not you were dependent on them.
If you are completely dependent on your loved one, you are awarded payments equal to two-thirds (66.67%) of your loved one’s salary per week for 500 weeks, which is slightly less than ten years. You are also entitled to a one-time payment of up to $12,000 for funeral expenses.
If you were not completely dependent on your loved one, you are awarded the same payments, but those payments are reduced to be proportional to the amount that you were dependent upon them. For example, if you were determined to be 70% dependent on your loved one, you are entitled to 70% of the total benefits.
If My Case Settles, How Will My Damages Be Calculated?
All of the calculations above are based on you filing a lawsuit (or workers’ compensation claim), your case going to trial, and you being awarded damages by a jury. However, 95% of all civil cases, including wrongful death cases, do not make it to trial and settle first. If this is the case, there is no way to calculate your award, but there are factors that impact the amount of your award.
One of the main factors that will affect the amount of damages that you receive for wrongful death is whether the defendant has insurance. This is very common, as the most common types of wrongful death accidents are car accidents, medical malpractice, and work accidents. All drivers in South Carolina are required to have car insurance (although some do not), and medical professionals often have malpractice insurance.
If your defendant has insurance, there are two factors to consider: the ability to pay and the policy limit. If the defendant is a business, such as a large hospital, neither of these factors means much because whatever the award, the business will be able to pay it. However, if your loved one was killed in a car accident, the ability of the defendant to pay becomes a big issue.
This is because the insurance company only has to pay up to their policy limit, which is the contractual maximum amount that they are liable for. While medical malpractice insurance policy limits can be millions of dollars, personal injury protection car insurance limits can be as low as $25,000. If the defendant in your case has no money and no assets, it is very unlikely that you will receive more than the insurance policy limits.
The other factor which will affect how big your settlement is is how good your lawyer is at negotiating. Whether it is with an individual defendant or their insurance company, your lawyer’s aim will be to convince the other party that your case is worth a huge amount of money, while the other lawyer will try to convince you that your case is not worth very much.
This is why hiring a skilled wrongful death attorney is so important because the negotiation skill of your attorney will directly affect the amount of money that you can receive.