Let’s look at the following fictional fact scenario, some of the legal issues involved, and how the issues change value, strategy, and settlement. Be patient; as you go through the facts see if you can identify the issues that might arise in pursuing a legal case. Here we go: a woman (we’ll call her “Sara”) was killed when the driver of a Ford F150 pickup truck (we’ll call him “Joe”) hit her while she walking across a street. Sara left behind two adult children, several grandchildren, and a boyfriend-partner that she lived with. She died without a will. She owned a small local business that dealt a lot in cash and had relatively low reported income on its tax returns.
The accident occurred mid-morning on a relatively major thoroughfare in the middle of a clear day. Joe was the owner of a small construction company and was driving his company truck and had just left a job site. Joe had his truck modified slightly by having it “leveled,” a modification to the suspension that raises the front of the truck with a slight lift kit to remove the manufacturer’s stock forward lean of the truck. Joe had personal auto insurance, business auto insurance, and an “umbrella policy” or “excess insurance” policy.
Sara was walking to work and taken this same walking route numerous times. Where she was crossing the road there was no crosswalk but was a location where it could be anticipated there might have been a crosswalk because another road terminated at the road she was crossing, a sidewalk also terminated at the end of that other road, and there was a convenience store at the corner that Sara was crossing to.
Finally, a local business had a surveillance camera that happened to have the intersection in full view. The video footage showed both Sara and Joe. It shows Sara walking down the sidewalk, stopping at the curb, looking both ways, waiting for traffic to pass, and crossing the road. It shows Joe approach the intersection from the road across the way from Sara, put on his blinker to turn left across the area that Sara ultimately walked across, waiting for traffic to clear, and accelerate and turn left towards Sara. It next shows Joe’s truck strike Sara with his front, driver’s side corner of his bumper, Sara thrown to the pavement, the truck slow to a stop, and Joe get out of his truck and examine Sara on the ground.
Now, let’s look at a few of the issues involved in pursuing a wrongful death claim:
Who Can Bring a Wrongful Death Claim? Because Sara died, there are two parties who can bring claims regarding her death: 1) her estate and 2) her heirs. When a person dies, the law automatically creates an “estate.” When you have a will, your estate is governed by that document and the personal representative identified in it. If you die without a will, you must initiate a probate estate and have a personal representative appointed.
Sara’s “heirs” would include her surviving spouse (if she had one), her children, her parents (biological or adoptive), dependent stepchildren, and, possibly, other surviving blood relatives if there are no other heirs. This means that because Sara had living children, her grandchildren would not be considered heirs. Sara’s live-in boyfriend is a separate problem. He and Sara were not married. Utah allows a “common-law” marriage if certain requirements are met: the couple are of legal age, capable of giving consent, have lived together, treat each other as being married, and hold themselves out to the public as though married. Here, without more supporting facts, the boyfriend is not an heir.
What Damages Can the Estate Claim? A wrongful death claim is similar to a personal injury claim except when it comes to damages. The measure of damages in the estate’s survival claim relates to the value of Sara’s personal losses that survive her death. These are “survival” claims or actions and, with regard to this accident, are limited to Sara’s pain and suffering that she experienced before she died related to the accident, her lost earning capacity, and other financial expenses incurred by the estate. In Sara’s case, let’s assume she died immediately and had no substantial pain and suffering to claim. Had she remained conscious and in pain for hours, days, weeks, or more, her survival claim could have been substantial.
Sara was a small business owner and had a claim for lost earnings in her business. Unfortunately, Sara’s zeal in keeping income off the books (due to hiding cash receipts) hurts her estate’s ability to substantiate those lost earnings. It’s a matter of proof. Sara signed her tax returns under penalty of perjury and she’s not around to explain how much she made and why her tax returns may not accurately reflect her income. It’s possible to extrapolate from business records and try to recreate losses, however, a judge or jury might be hesitant to believe anything contradicting Sara’s sworn tax returns.
Finally, Sara’s estate incurred medical, funeral, and burial expenses. In a wrongful death involving a vehicle, the loss of the vehicle would also fall under this category.
What Damages Can the Heirs Claim? The measure of damages in wrongful death relates to the value of the deceased person to the heirs. If Sara were estranged from all of her children or heirs, their claim would be diminished significantly. Some of the factors that make a difference in the value of the heirs’ claim include: 1) whether the deceased person provided financial support to the heir, 2) whether the deceased person provided mental or emotional support to the heir, 3) the relationship between the deceased person and each individual heir, and 4) the ages of the deceased and heirs. Whole trials are often devoted solely to this issue.
What Effect Does the Video Have on Settlement Potential? If only there was a video available of every accident! Usually, there is little more evidence than police drawings, pictures of skidmarks, truck bumpers, car parts and pieces, and blood. This is why accident reconstruction is a large part of nearly every substantial truck or car accident case. In fact, even with a video, accident reconstruction is still likely required to show a jury exactly how and why an accident may have occurred. In Sara’s case, let’s assume the video does not show Joe slowing down or doing anything that evidenced Joe having seen Sara. The video would be the ‘picture worth a thousand words’ and would tend to compel a substantial settlement in Sara’s favor. Videos, however, can be both beneficial and harmful. For instance, the video could show the violence of the accident (tending to increase sympathy and outrage) but could also how Sara might have prevented it (tending to increase her share of responsibility for the accident). It might be a mixed blessing and curse for both the heirs and the defendant.
Do Higher Insurance Policy Limits Mean the Case Is Worth More? As always, it depends. Insurance is often a driver of value and settlement potential in a case. If there is no insurance and the person who caused the injury has little money, your case has little value. In Sara’s case, there appear several policies in play: the driver’s personal auto insurance, the company’s auto insurance (which covers the vehicle), and the company’s excess policy. An “excess” or “umbrella” policy is simply a policy that potentially adds additional money on top of the underlying policy limits (this can get complex). If the claim never exceeds the first policy limits, the excess policy is never in play. So, for Sara, if her wrongful death claim were so large that it is greater than the auto policy limits, she could potentially tap into the excess policy. All this means is that Sara’s claim is not necessarily worth more but it is not arbitrarily limited by a low insurance policy limit. That’s good news for Sara and her heirs and means her claim should be settled for its full value.
In a Pedestrian Accident, Do Crosswalks Matter? Short answer: usually yes. Long answer: Utah law generally requires pedestrians to use crosswalks where possible. If we assume Sara had a crosswalk that she could have used instead of jay-walking, she has some responsibility for the accident. If the available crosswalks were some distance away and were inconvenient, then her responsibility would be lessened but not necessarily eliminated. There are Utah Code sections dedicated to driver and pedestrian responsibilty and it is beyond the scope of this example to examine them.
Call Me. Sara’s fictional case or parts of it may have similarities to something that has happened to you. You likely have more questions than this post or the other information on this website can provide. Every situation is unique. If you have been injured or are the heir of someone killed in an accident, feel free to reach out to me to discuss your circumstances. You cannot make a good decision if you do not get competent advice from a qualified, experienced attorney. You need to protect yourself and your loved-ones from the often devastating effects of permanent injury or death. You do this by pursuing what you are entitled to. Call me.
Ken