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10550 Independence Pointe Pkwy, Ste 200
Matthews, NC 28105
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(704) 759-6110

Semirog Law Firm, pllc is a personal injury and auto accidents law firm located in Charlotte and Matthews, North Carolina.   We are committed to providing quality legal services in a dedicated and cost-effective manner to all members of our community, regardless of race, gender, or national origin.

We have handled complicated litigation in the areas of personal injury, car wrecks, truck accidents, family and business law.  In addition, we have experience in real estate law and short-sale negotiations.

We offer standard and flexible billing arrangements for our clients, such as flat fee billing, hourly billing, and contingency fee billing depending on the type of legal matter.

Wrongful Death

Matthews North Carolina personal injury and auto accident attorneys and Charlotte North Carolina personal injury and auto accident and motorcycle accident attorneys.

Wrongful Death

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Motor vehicle crashes are the leading killer of children, teens, and young adults (ages 5 to 34) and among the top ten causes of death for all ages.

Over 30,000 people are killed in crashes each year in the United States.

According to the US Center for Disease Control and Prevention, in 2005, in addition to the impact on victims’ families and friends, crash deaths resulted in $41 billion annually in medical and work loss costs.  

 Total crash-related death costs in North Carolina in one year average about $ 1.5 billion.

Wrongful death law is a subset of personal injury law, which deals with accidents that result in death to a person.  The major difference from other subsets of personal injury law is that in the case of wrongful death the compensation is not meant for the injured party, but for the family, heirs or the estate of the deceased person.  

“Wrongful death is a claim in common law jurisdictions against a person who can be held liable for a death. The claim is brought in a civil action, usually by close relatives, as enumerated by statute. Under common law, a dead person cannot bring a suit, and this created a loophole in which activities that resulted in a person's injury would result in civil sanction but activities that resulted in a person's death would not.”

 

Wrongful death cases involve one party (Plaintiff) claiming breach of duty of care by a second party (Defendant) that resulted in the death of an individual or fetus.   Such breach can be the result of certain actions, omissions, negligence, wrongful conduct, or any other type of negligent behavior.

In standard personal injury cases the injured party can file a lawsuit against the at-fault party.  In wrongful death cases only close relatives and heirs can do so.  Children, spouses, parents or heirs have a right to file a claim.

 

Wrongful Death Statute

 

Almost every jurisdiction at the state level has enacted a wrongful death statute.  North Carolina has codified a wrongful death act in Section § 28A‑18‑2.  Death by wrongful act of another; recovery not assets.

(a)        When the death of a person is caused by a wrongful act, neglect or default of another, such as would, if the injured person had lived, have entitled the injured person to an action for damages therefor, the person or corporation that would have been so liable, and or her the personal representatives or collectors of the person or corporation that would have been so liable, shall be liable to an action for damages, to be brought by the personal representative or collector of the decedent; and this notwithstanding the death, and although the wrongful act, neglect or default, causing the death, amounts in law to a felony. The personal representative or collector of the decedent who pursues an action under this section may pay from the assets of the estate the reasonable and necessary expenses, not including attorneys' fees, incurred in pursuing the action. At the termination of the action, any amount recovered shall be applied first to the reimbursement of the estate for the expenses incurred in pursuing the action, then to the payment of attorneys' fees, and shall then be distributed as provided in this section. The amount recovered in such action is not liable to be applied as assets, in the payment of debts or devises, except as to burial expenses of the deceased, and reasonable hospital and medical expenses not exceeding four thousand five hundred dollars ($4,500) incident to the injury resulting in death, except that the amount applied for hospital and medical expenses shall not exceed fifty percent (50%) of the amount of damages recovered after deducting attorneys' fees, but shall be disposed of as provided in the Intestate Succession Act. The limitations on recovery for hospital and medical expenses under this subsection do not apply to subrogation rights exercised pursuant to G.S. 135‑45.1. All claims filed for such services shall be approved by the clerk of the superior court and any party adversely affected by any decision of said clerk as to said claim may appeal to the superior court in term time.

(b)        Damages recoverable for death by wrongful act include:

  1. Expenses for care, treatment and hospitalization incident to the injury resulting in death;
  2. Compensation for pain and suffering of the decedent;
  3. The reasonable funeral expenses of the decedent;
  4. The present monetary value of the decedent to the persons entitled to receive the damages recovered, including but not limited to compensation for the loss of the reasonably expected;

a.         Net income of the decedent,

b.         Services, protection, care and assistance of the decedent, whether voluntary or obligatory, to the persons entitled to the damages recovered,

c.         Society, companionship, comfort, guidance, kindly offices and advice of the decedent to the persons entitled to the damages recovered;

        5.  Such punitive damages as the decedent could have recovered pursuant to Chapter 1D of the General Statutes had the decedent survived, and punitive damages for wrongfully causing the death of the decedent through malice or willful or wanton conduct, as defined in G.S. 1D‑5;

        6.  Nominal damages when the jury so finds.

(c)        All evidence which reasonably tends to establish any of the elements of damages included in subsection (b), or otherwise reasonably tends to establish the present monetary value of the decedent to the persons entitled to receive the damages recovered, is admissible in an action for damages for death by wrongful act.

(d)       In all actions brought under this section the dying declarations of the deceased shall be admissible as provided for in G.S. 8‑51.1. 

Source: http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_28A/GS_28A-18-2.html

The Wrongful Death Act provides for survivorship only of claims that could have been brought by the decedent had he lived.  The North Carolina Supreme Court has interpreted the statute to mean that the decedent must have had a viable claim for personal injury on the date of death, rather than on the date that the wrongful death action is filed. 

In other words, a wrongful death action is not time-barred if (1) it is brought within two years of the date of decedent's death, and (2) on the date of death the Wrongful Death Act would not have barred an action for personal injuries had one been brought on that date.

For a wrongful death action to lie, the death must have been caused by the defendant's wrongful act, neglect or default.  However, contributory negligence of the decedent is a complete bar to a wrongful death action based on negligence.  Likewise, the decedent's conduct amounting to assumption of risk (insofar as it might be differentiated from negligence) may also be a complete bar to a wrongful death action based on negligence.

Under the North Carolina Wrongful Death Act, the proceeds of recovery are distributed as if the decedent died intestate, that is without a will.  North Carolina courts have held that if the sole beneficiary is the person whose wrong resulted in the decedent's death, there can be no recovery because the wrongful death action fails altogether.

The statute of limitations for actions for wrongful death is two years, which begins to run at the date of the decedent's death. 

Link: http://www.ncleg.net/enactedlegislation/statutes/html/bysection/chapter_1/gs_1-53.html

 

Wrongful death of a Viable Fetus

 

North Carolina has also recognized a cause of action for the wrongful death of a viable fetus. Thus, it may be said that a viable fetus, interpreted to be a ''person'' within the meaning of the Wrongful Death Act, is owed the duty of ordinary care.  In this context, as at common law, ''viability'' means the capability to live independently of the mother.   

On the other hand, North Carolina does not recognize a cause of action for wrongful life or for wrongful birth.  Wrongful life refers to a claim for relief by or on behalf of a defective child who alleges that but for the defendant's negligent treatment or advice to its parents the child would not have been born. Wrongful birth refers to the claim for relief of parents who allege that the negligent treatment or advice deprived them of the choice of terminating pregnancy by abortion and preventing the birth of a defective child.

If you have suffered a loss of a loved one due to an accident, malpractice, or any other negligent act we urge you to contact our office.  We will evaluate your case and will help you understand your rights and decide on a further course of action.  We are here to help you in your time of need, so don’t hesitate to call us.

 

 
By Serge SemirogGoogle +