Frequently Asked Questions about Georgia Wrongful Death Claims


November 26, 2013

Few experiences are as emotionally devastating as the loss of a family member or other close loved one, but the pain can be intensified when the death is caused by the negligent, reckless or intentional actions of another individual. When you lose someone you love, the accompanying sense of overwhelming grief and loss tends to make concerns about insurance issues and legal claims a low priority. Unfortunately, these pragmatic matters generally cannot be put off until the process of coping with one's grief has run its course. When a family loses the primary wage earner in the family, the financial recovery in a Georgia wrongful death settlement or judgment can provide the ability to maintain the family's standard of living, finance the decedent's kids' college education and provide financial security for family members.

Because our Atlanta wrongful death lawyers recognize that it is difficult to focus on such matters in the aftermath of a loved one's death, we have provided answers to common questions we receive about wrongful death claims in Georgia.

What is the burden of proof that must be satisfied in a wrongful death case?

The burden of proof that must be met is the" preponderance of evidence" standard, which is far less than what is required for proving that the conduct of a party caused the homicide in a criminal case. The standard in a wrongful death case based on negligence simply requires that it is "more likely than not" that the failure of the defendant to exercise reasonable care to avoid injury to others caused the decedent's death. This means that the plaintiff's only need to tip the scale slightly rather than prove liability or causation beyond a reasonable doubt.

Who may file a wrongful death action?

Under Georgia law, the surviving spouse may bring a wrongful death claim. When the surviving spouse does pursue the claim, any recovery is shared equally between the surviving spouse and the children of the decedent. If the decedent does not have a surviving spouse, the children of the decedent may bring a wrongful death claim. When the decedent has neither a surviving spouse nor children, the parents of the decedent may file a wrongful death lawsuit. In the absence of these family members, the administrator of the estate of the decedent can pursue the claim.

What is the point of contacting Montlick and Associates if an attorney has already informed me that I do not have a valid claim?

The process of determining the viability of a wrongful death claim is not a precise science so attorneys can have a difference of opinion. Because our law firm has been representing victims of negligent, reckless and intentional conduct that causes injury and death for over third years, we have a broad range of experience to draw on when evaluating a wrongful death claim. Families should get a second opinion from another Georgia wrongful death lawyer even if they have been previously told that they do not have a meritorious claim.

Can the process of initiating a wrongful death claim be put off so that family members can cope with their grief?

While the instinct to delay such issues is entirely understandable, there is a significant risk to not taking prompt action following a fatal car accident or other incident resulting in wrongful death. When parties delay pursuing a claim for wrongful death, the ability to gather the vital evidence necessary to prove liability and causation may be compromised. When a loved one dies in a crash, evidence like skid marks, vehicle damage, paint transfer and other critical proof may disappear. Anyone who is familiar with the construction trades knows that the array of sub-contractors and other entities can change making it extremely difficult to track down a day laborer who may have committed the negligent conduct that caused a construction accident or that may be a crucial witness to what occurred.

The obstacles raised by these evidentiary challenges are only part of the problem. The law imposes strict deadlines. Failure to comply with these timing requirements can result in severe damage to one's ability to obtain the full measure of compensation to address all forms of loss. The statute of limitations for initiating a wrongful death claim generally is two years, but it can vary depending on the facts of the case and specific circumstances. However, failure to file a lawsuit within the statute of limitations will almost always prove fatal to one's wrongful death claim. There can be disputes regarding when the statute of limitations has expired so families should consider seeking legal advice even if they are under the impression the statute of limitations has run.

How is the value of a wrongful death claim calculated?

There are many factors that determine the value of a wrongful death claim, which include but are not limited to the following facts:

• Age and health of the decedent
• Experience, education and earning capacity of the fatality victim
• Pain and suffering endured from the time of the accident until death
• Medical bills and death-related expenses incurred
• Intangible value of the loss of enjoyment of life experiences by the decedent
• Degree of egregiousness of the defendant's conduct (i.e. simple negligence vs. reckless or
intentional acts)
• Impact on immediate family members in terms of loss of financial support, guidance and
companionship

As this list of factors makes clear, the value of a wrongful death claim can vary substantially based on the specific facts and circumstances of the claim so it is important to seek legal advice. One rule of thumb about wrongful death claims that surprises many people is that cases involving kids and elderly victims often result in less recovery. The reason for this outcome is that lost earnings is in an important component of damages so those who have completed their career or have not yet established an earning capacity will not recover much for future lost earnings. However, there are exceptions to this generalization so you should seek legal advice if you have questions about this issue.

Contact the Experienced Atlanta Wrongful Death Lawyers at Montlick and Associates Today!

If someone close to you dies because of the wrongful conduct of a third party, our Atlanta wrongful death attorneys at Montlick and Associates are available to provide effective legal representation to those throughout all of Georgia and the Southeast, including but not limited to Albany, Athens, Atlanta, Augusta, Columbus, Gainesville, Macon, Marietta, Rome, Roswell, Savannah, Smyrna, Valdosta, Warner Robins and all smaller cities and rural areas in the state.

No matter where you are located our attorneys are just a phone call away, and we will even come to you. Call us 24 hours a day/7 days a week for your Free Consultation at 1-800-LAW-NEED (1-800-529-6333). You can also visit us online at www.montlick.com and use our Free Case Evaluation Form or 24-hour Live Online Chat.

Category: Personal Injury

Please Note:
Many of our blog articles discuss the law. All information provided about the law is very general in nature and should not be relied upon as legal advice. Every situation is different, and should be analyzed by a lawyer who can provide individualized advice based on the facts involved in your unique situation, and a consideration of all of the nuances of the statutes and case law that apply at the time.