Decatur Wrongful Death Lawyer

A claim must be made by a person who has standing to pursue the case in Illinois.  Only the personal representative of the deceased can file a wrongful death claim in this state.  A personal estate plan or will usually names this individual (sometimes called an executor).  However, if there is no document naming a representative, or the deceased did not have a will, a person can petition a court to appoint one.  This representative can be the spouse of the deceased, an adult child of the deceased, or the parent of a deceased minor.  As noted above, a survival claim can be made by the personal representative of the estate on behalf of the estate, but a claim under the Wrongful Death Act is brought for the exclusive benefit of the surviving spouse and “next of kin”.  Under Illinois law, next of kin includes blood relatives in existence at the time of the victim’s death that would take property under the statutes if the victim had died without a will.  In the absence of children or a spouse, other relatives such as parents or siblings of the deceased may qualify.  But, the claim itself is made in the name of the personal representative, rather than of the family members.

Obviously, a compassionate wrongful death lawyer is helpful for consulting with relevant family members and the executor of the estate to determine the best possible course of action in pursuing claims.

The damages that can be recovered after the death of a loved one depends on whether the claim is made under the Illinois Wrongful Death Act or the Survival Act.

Damages under the Wrongful Death Act

Section 2 of the Wrongful Death Act provides that fair and just compensation may be obtained, for the exclusive benefit of the survivors, with reference to any monetary injuries they suffered resulting from the wrongful death, including damages for “grief, sorrow, and mental suffering“.  These monetary damages might include:

• lost income — this includes the complete value of the deceased’s financial contribution to the family
• lost benefits such as health insurance, pensions, bonuses, etc.
• loss of companionship — this includes loss of guidance and protection to children, as well as lost spousal consortium
• loss of future inheritance
• loss of services that the deceased would have provided to their spouse and children, including education and instruction for the children
• either the estate or individual survivors may bring a separate claim to recover funeral expenses
• finally, if an act of negligence that led to death was especially egregious, abusive, flagrant, or intentional, a jury in Illinois may punish the responsible party by awarding punitive damages — but malign intent or willful negligence must be clearly established.

The amount of damages is based on evidence of what the deceased victim typically contributed in the past and likely would have contributed in the future.  The amount also depends on the degree of a survivors’ dependency, so the survivors’ relationship to the victim plays an important role.

Damages under the Survival Act

In a Survival Claim, the estate may recover for any damages the victim suffered between the time of injury and time of death, including:

• medical expenses
• lost earnings
• conscious pain and suffering
• any funeral expenses the estate is responsible for paying

It’s clear that calculating the amount of damages suffered, and by whom, in a wrongful death claim can be quite complicated.  The losses must be supported by objective evidence.  Many variables must be considered.  It may require the expertise of financial professionals and economists.  Figuring out how each family member is appropriately compensated can become fraught with emotion.  A caring and experienced wrongful death attorney can help you through this difficult situation.

If you don’t make a claim within the time allowed by statute (a statute of limitations), you may be barred from ever recovering compensation.  For wrongful death, the claim must be made within one year of the date of death  or within the statute of limitations for the underlying type of case, “which ever date is the later”.  Most of these cases are of the personal injury type, which must generally be filed within two years of the date of the incident.  That means you typically have at least one year and as much as two years to make the claim.  There are some exceptions:

• Survivors of a person who died as a consequence of medical malpractice have two years from the time they knew, or reasonably should have known, that a provider’ s actions caused the death; but, in any case they must still bring the action within four years of the death
• a child has until two years after reaching the age of 18 to make a claim
• when making a claim against a government agency, the statute of limitations is usually one year

If you believe you have a claim, it’s important to consult an attorney as soon as possible, in order to make sure that any legal deadlines are met. The best way to determine what limitations period applies to your case is to take advantage of a free consultation with an experienced attorney.

In Illinois, being partially responsible for events that led to death is called contributory negligence or comparative fault.  Survival actions and wrongful death claims can still be brought if the deceased was partially at fault.  However, the damages awarded may be reduced.  For example, if your loved one was determined to be 1-49% at fault, then the damages are reduced by a percentage proportionate to their fault.  However, if the deceased was more than 50% responsible, the case may be dismissed.  Also, the fault of any survivors pursuing damages may also be taken into account.  If a particular survivor was more than 50% at fault in causing the death, recovery may be barred.  If less responsible, the survivor may recover damages that are reduced in proportion to their degree of fault.

You’re already dealing with loss and grief from a tragic death.  You want answers about why this tragedy happened, but you’d rather heal your family and grieve in peace rather than deal with paperwork and insurance companies.  You want justice, but this area of the law is complicated and every case is different.  Consulting with an attorney with the skill and resources to make sure justice is done is the best approach.  My firm can:

• Investigate — obtain all the medical records and other necessary evidence, including, when necessary, consulting with experts, to determine who was at fault and should be held responsible.
• Determine all the possible responsible parties, making sure that none are overlooked
• Review all insurance coverage — most often recovery can be obtained from a company that has ensured the responsible party; we can review all possible policies that might be involved in your case, such as auto liability, underinsured or uninsured motorist coverage, homeowners insurance, professional malpractice policies, etc.
• Establish and properly value all of your damages and losses
• Negotiate on your behalf — in many cases we can pursue a settlement that provides just compensation to the survivors and the estate without going to court
• Make sure that all legal deadlines are met
• Litigate — file a lawsuit, in the event that a settlement can’t be reached; we’ll make sure that you have representation in court to get you the recovery you deserve.

You shouldn’t feel like you have to do this alone and cost should not stand in the way of your ability to get legal help.  We usually represent clients in these cases on a contingency fee basis.  That means that there are no charges to you upfront and we are only paid from the settlement if and when we successfully obtain a recovery for you.