Losing someone you love is devastating enough. When their death is due to the negligence or wrongful actions of another party, the pain can be even more profound. Not only are you facing financial hardship and emotional loss, but the sense of injustice can leave you awake at night.
In such challenging times, seeking justice through a wrongful death lawsuit can offer a glimmer of hope and closure. This blog explains who can file a wrongful death lawsuit in Kentucky, how you go about doing so, and how a Kentucky wrongful death lawyer can help.
Who Has Standing to File a Wrongful Death Lawsuit?
Some states automatically permit close relatives of the deceased to file a lawsuit, including spouses, children, and parents. That is not the case in Kentucky. Instead, Kentucky law specifies that only the personal representative of the deceased’s estate, who is often referred to as the executor or administrator, has the legal authority to bring forth a wrongful death claim.
If the deceased individual had previously created a will and appointed a personal representative, that designated person holds the right to initiate the wrongful death lawsuit once they are appointed as the administrator of the estate.This individual is typically responsible for managing the decedent’s estate and legal affairs, including any legal actions related to wrongful death.
However, it’s important to note that in many cases, the deceased may not have had the opportunity to establish a will or designate a personal representative before their untimely passing. In such instances, Kentucky courts step in and appoint someone to serve as the personal representative for the sole purpose of pursuing a wrongful death claim. This appointed individual is usually a close relative of the decedent or an attorney.
There appears to be two notable exceptions to this general rule. Firstly, if the death resulted from using a weapon, such as a homicide or assault involving a deadly weapon, the surviving spouse or children of the deceased have the legal right to bring forth the claim, bypassing the need for the personal representative to initiate it. This exception recognizes the severity of such cases and allows immediate family members to seek justice.
Secondly, if the deceased person was a minor, meaning they were under the age of 18 at the time of their passing, a different set of rules applies. In such cases, the child’s parents are permitted to join the lawsuit that has been filed by the administrator of the estate. This provision ensures that the legal rights and interests of the deceased minor are adequately represented in the wrongful death claim.
How to File a Wrongful Death Claim in Kentucky
Filing a wrongful death lawsuit requires you to follow specific procedures. Below is an overview of the essential steps, from gathering crucial evidence to initiating the lawsuit and navigating the subsequent legal processes.
Gathering Evidence and Documentation
All relevant evidence related to the wrongful death case must be preserved. This includes documents, photographs, medical records, accident reports, and any other information that may support your claim. Ensure that evidence is kept intact and not tampered with.
You will also want to create a detailed account of the incident leading to the wrongful death. This should include witness statements, records of conversations, and any relevant information that can help establish liability.
Initiating the Lawsuit
Begin by drafting and filing a complaint in the appropriate Kentucky court. The complaint outlines the details of the wrongful death, including the parties involved, the circumstances of the death, and the damages sought. After filing it, you must serve notice to the defendant, informing them of the lawsuit. Proper service ensures that the defendant is aware of the legal proceedings and has the opportunity to respond.
Legal Processes and Court Proceedings
A wrongful death lawsuit typically involves several stages, including pre-trial discovery, where both parties gather evidence, depositions, negotiations, and potentially a trial if a settlement cannot be reached. The court may also schedule hearings and motions during this process.
You’ll want to pay strict attention to deadlines and timelines set by the court. Missing deadlines can have adverse effects on your case. Consult with your attorney to ensure you adhere to all required timelines, which can vary depending on the specific circumstances of your lawsuit.
Available Damages in a Lawsuit
In a wrongful death lawsuit, available damages can be categorized into non-economic and financial/economic damages:
Non-economic damages, often referred to as “general damages,” provide financial recovery for losses that are subjective and not easily quantifiable in monetary terms.
- Pain and Suffering: These damages encompass the anguish endured by the deceased person from the moment of the accident or wrongdoing until the time of their death. While challenging to quantify with a specific dollar figure, they acknowledge the physical and emotional suffering experienced by the decedent.
- Loss of Consortium: This damage category pertains to the emotional and relational losses suffered by a spouse or immediate family members. They are deprived of the deceased person’s love, companionship, support, and other intangible aspects of the relationship.
- Loss of Instruction and Guidance: This damage type recognizes the loss of instruction and guidance that the deceased would have provided to any surviving children. It accounts for the educational and mentoring role the decedent would have played in the lives of their offspring.
Economic damages represent the actual financial costs and losses incurred as a result of an injury, accident, or wrongful act. They typically include the following:
- Medical Expenses: This category includes the medical expenses incurred as a result of the injury or illness that ultimately led to the person’s death. It encompasses costs related to treatment, hospitalization, and any medical care necessitated by the incident.
- Lost Financial Support: These damages represent the financial support that the deceased would have provided if they were still alive. Awards for future support are typically reduced to their present cash value to determine compensation.
- Lost Inheritance: This damage type considers the family members’ lost inheritance, which represents what the deceased person would have saved and left to surviving family members in terms of financial assets or property.
- Funeral and Burial Expenses: Funeral and burial expenses, including costs associated with the deceased’s final arrangements, are recoverable damages in a wrongful death lawsuit.
In Kentucky, punitive damages may be awarded in wrongful death cases if the death resulted from an intentional act or gross negligence. Unlike other types of damages that aim to compensate the estate or surviving family members for their losses, punitive damages are intended to punish particularly egregious conduct and deter others from acting intentionally harmfully or in a grossly negligent manner.
It’s also important to note that a separate claim must be filed to seek damages for loss of consortium, which includes the loss of the person’s love, care, companionship, services, and society.
Deadline for Filing a Claim
Wrongful death lawsuits in Kentucky must be filed within a specific time period, known as the statute of limitations. This is generally one year from the date on which the personal representative is appointed or two years from the date of the person’s death if the appointment occurs more than one year from the date of death. If you fail to initiate the lawsuit within the appropriate time period, you may lose your legal right to seek compensation.
When to Hire a Wrongful Death Attorney
If you believe that the death of a loved one was caused by negligence or wrongful actions, it’s advisable to contact an attorney as soon as possible. Waiting too long before seeking legal counsel can lead to lost evidence, missed deadlines, or the expiration of the statute of limitations. An early assessment by a wrongful death lawyer can help identify key legal issues and strategies to build a strong case.
Below are some of the advantages of seeking legal representation as soon as possible:
- Assessing the Strength of the Case: A wrongful death attorney can examine the circumstances surrounding the death and gather evidence to determine liability. This assessment helps identify the chances of success and potential legal remedies.
- Developing a Legal Strategy: The attorney will develop a legal strategy tailored to your case based on their assessment. This strategy outlines how to pursue compensation, who to hold responsible, and the most effective approach for achieving a favorable outcome.
- Negotiation and Settlement: Attorneys are skilled negotiators who can explore the possibility of reaching a settlement with the responsible party or their insurance company. Settlement discussions can result in a quicker resolution without the need for a trial.
- Preparing for Trial: If a settlement cannot be reached, your attorney will prepare for trial. This involves gathering and presenting evidence, identifying witnesses, and developing a strong case strategy. Attorneys ensure that all legal requirements and deadlines are met throughout the litigation process.
Who Receives Compensation From a Wrongful Death Lawsuit in Kentucky?
In a wrongful death lawsuit in Kentucky, the distribution of any financial award follows a specific order as outlined in the Kentucky Revised Statutes:
- If the deceased had a surviving spouse but no children or descendants, the entire award goes to the surviving spouse.
- If the deceased had both a surviving spouse and children or descendants, half of the award goes to the surviving spouse, and the other half is divided among the children or descendants.
- If the deceased had no surviving spouse but had children or descendants, the entire award is given to the children or descendants.
- If there is neither a surviving spouse nor children or descendants, the award is then distributed to the deceased’s parents. Each parent receives half of the award, or if one parent is deceased, the entire award goes to the surviving parent.
- If there are no surviving spouses, children, or descendants, and both parents are deceased, the award becomes part of the deceased person’s estate. It is used to settle debts and may then be distributed to any beneficiaries designated in the estate.
What is the Average Wrongful Death Settlement?
Wrongful death settlements can vary significantly based on the specific circumstances surrounding the case. While there is no one-size-fits-all figure, various factors can impact the settlement amount. Some of these factors include:
- Liability: The degree of fault or liability on the part of the defendant(s) is a critical factor. If liability is clear and well-documented, it can strengthen the case and potentially lead to a higher settlement.
- Causation: Establishing a clear link between the defendant’s actions or negligence and the wrongful death is essential. Strong evidence connecting the defendant’s conduct to the death can impact the settlement amount.
- Economic Losses: The economic damages suffered by the survivors play a significant role. These can include medical expenses, funeral and burial costs, loss of financial support, and other quantifiable financial losses.
- Non-Economic Damages: Non-economic damages, such as pain and suffering, loss of consortium, and emotional distress, also influence the settlement. The subjective nature of these damages makes their valuation complicated.
It’s essential to work with an experienced wrongful death attorney who can assess your specific case, consider these factors, and provide guidance on what may be a reasonable settlement amount. Ultimately, the settlement reached in a wrongful death case should aim to provide fair compensation to the surviving family members for their losses and suffering.
Get a Free Consultation From a Kentucky Wrongful Death Lawyer
When you lose someone you love, the pain can be unbearable. The emotional toll, coupled with financial hardship, can leave you feeling overwhelmed. The profound sense of injustice may also keep you awake at night as you seek answers and resolution.
If your family is facing the prospect of a wrongful death lawsuit in Kentucky, we encourage you to reach out to The Schafer Law Office. Our team of Kentucky wrongful death attorneys will handle your case with care, compassion, and a commitment to justice. To schedule your free consultation, contact us today.