Frequently Asked Questions

Answers to your Questions

What is a wrongful death claim? 
In general terms, a wrongful death claim refers to a legal claim that may be brought by certain family members of a "decedent" (this is the legal word for the person who has passed away) whose death was caused by the wrongful conduct of another.

Who can file a wrongful death case?
The deceased person's estate is represented by a person approved by the Surrogate's Court, usually the Executor of the decedent's Will. If there is no Will, upon a proper application with notice to everyone having an interest, the surviving spouse or the surviving children or the decedent's parents or others may be designated by the Surrogate to bring the wrongful death claim. There is a statute that sets forth the order of preference.

Can I bring a wrongful death action if the deceased never held a job?
Yes, even if the decedent never held a job, they may have contributed in some other way to the family. A good example of such a decedent is a housewife, who contributes services, guidance and nurturing to her family. These contributions are quantifiable as "pecuniary losses" in a wrongful death action.

Can someone sue for the pain and suffering of a decedent?
Yes, in addition to the wrongful death, a decedent's family may recover damages for the pain and suffering that the decedent endured prior to death (this is called a "conscious pain and suffering claim" and is also called a "survival action).  It must be remembered that the statute of limitations for the wrongful death action in NY is 2 years and for the pain and suffering action 3 years. In this circumstance, it is prudent to bring both claims within two years of the accident giving rise to the death.

What if a person dies before bringing a personal injury lawsuit?
It depends on whether a person dies as a result of the injuries or from unrelated causes. If a person injured in an accident subsequently dies because of those injuries, that person's heirs may recover money through a lawsuit. If a person with a personal injury claim dies from unrelated causes, the claim survives in most cases and may be brought by the Executor or personal representative of the deceased person's estate. Again, the statute of limitations may prove a bar. You should consult with a knowledgeable lawyer as soon as practicable.

What kinds of damages are recoverable in these cases?
A wrongful death action can be filed on the following grounds:

• Economic or Pecuniary Damages - A wrongful death action can be filed to recover the economic damage caused by the victim's death. These damages include:

• Loss of Financial Support - The pecuniary or monetary loss suffered by the surviving family members who will now be left without the income generated by the deceased. The compensation can include the deceased's earning capacity at the time of death as well as potential future income that the deceased would have earned. In some instances, compensation can be awarded if the deceased was unemployed or a homemaker. Depending on jurisdiction, other economic damages can be recovered, such as losses of service, protection, assistance and even inheritance which the deceased was providing or would have provided to his/her loved ones.

• Loss of Parental Guidance - Minors can sometimes recover damages for the guidance and nurturing that the deceased parent would have contributed.

• Loss of Consortium - The loss of the deceased's companionship and comfort which includes the loss of conjugal love (sexual relations) and moral support.

• Additional Economic Damages - Survivors can also recover monetary damages for expenses directly relating to the deceased's passing including hospital, medical and nursing costs as well as funeral and estate administration costs.

Many factors can be taken into account when determining the economic value and income potential of the deceased, including the deceased's age, physical condition, life expectancy, intelligence and character. The financial circumstances of the surviving family members should also be properly evaluated and utilized to determine the monetary impact of the wrongful death. In addition, it is important to note that in many states the economic damage award will include interest generated from the date of the deceased's passing. The lawyer handling your claim should be familiar with personal injury litigation and have access to a variety of financial experts to help establish the serious economic impact the deceased's wrongful death will have on your family.

Can I recover for my own grief and sorrow as a result of a loved one's death?
In most states (for example, Pennsylvania)  a wrongful death action can be filed to recover damages for the mental anguish, grief and sorrow experienced by the deceased's family. Sadly, New York State's wrongful death laws do not allow family members to recover for pain and suffering. However, there is legislation being debated by New York State lawmakers that would serve to correct this situation.  We hope that N.Y. soon joins the rest of the states who recognize that harmed families deserve to be compensated by the grief and sorrow caused by an unnecessary death.

When someone dies, what is the difference between the civil and criminal cases that can be brought regarding the death?
A criminal case arises when the government seeks to punish an individual for an act that has been classified as a crime. A civil case, on the other hand, usually has to do with a dispute over the rights and duties that individuals and organizations legally owe to each other. The burden of proof is higher in a criminal case (proof beyond a reasonable doubt), and the penalty imposed is a criminal sanction, whereas, in a civil case, the burden of proof is less than proof beyond a reasonable doubt (fair preponderance of the evidence) and the defendant will typically have a monetary judgment entered against him/her.

What is the first step in pursuing a wrongful death claim?
Given that wrongful death claims and survival actions generally involve a variety of complex legal issues, the first step is to consult an attorney. An attorney should be consulted as soon as reasonably possible because there are statutes of limitations and possibly other critical deadlines that may impact the case. Where the negligent party was a municipality (state, county, city. town, school district, etc.) there is a very short 90 day statute of limitation that may apply.

What about the costs involved in pursuing a case?
Many attorneys, including the attorneys at the Ziff Law Firm, will agree to handle wrongful death cases and survival actions on a contingent fee basis. This means that the attorney will not charge an hourly rate for his or her services, but instead will be paid a percentage of the recovery in the event of a settlement or judgment. We receive no legal fee unless we succeed in securing an award for you, either by trial or settlement.

How long will my wrongful death case last?
The vast majority of all cases, including wrongful death cases, are settled prior to trial. Some cases are settled prior to the filing of a lawsuit, while others are settled during litigation or even on the "steps of the courthouse" just before trial. A wrongful death case, if litigated to trial, could last a number of years. One who pursues a wrongful death case should understand from the outset that a quick resolution cannot be guaranteed.

Do I have to pay taxes on a settlement for my injuries?
No you do not. In New York, compensation for your injuries is tax free. You will receive notification from the insurance company that paid you compensation with documentation about your settlement. You need to give that to your accountant. However, there are no taxes to be paid on your settlement.

When you invest those monies into taxable investments, then any profit or gain you achieve is obviously taxable.

In a death case, an award for pain and suffering is generally taxable to the estate. In some instances there are legal ways to allocate the monies to the wrongful death cause of action (which is not taxable to the estate) rather than the pain and suffering cause of action (which is taxable to the estate).

It's bad enough being injured, and then having to bring a lawsuit to obtain proper compensation and payments for your disabilities. Can you imagine the impact it would have if you then had to pay income taxes on those monies? Luckily, the government realized that injury settlements are not earned income. Rather, they compensate an injured victim for the pain, suffering, and disabilities they suffered at the hands of another's carelessness.