Wrongful death insurance claims are a special class of personal injury suit that are handled differently in many circumstances based on state law. Georgia state law requires that a valid wrongful death claim also include proof of “negligence, intentional, or criminal” activity by the defendant with respect to a reasonable duty of care for the claimant. Material case facts presented in many accidents can result in a fatal victim not having standing to sue for wrongful death when fault for the death is shared by both parties. Georgia uses modified comparative negligence law with a bar from recovering financial damages if the victim plaintiff was at least 50% responsible for their own injury. Personal contribution to the accident can matter greatly with this type of negligence law, and having an aggressive wrongful death attorney is vital for a fair and equitable settlement.
Standing to Sue
While many obvious fault wrongful death claims can be settled through the applicable insurance company, many times wrongful death cases will still go to trial. Either party may request a full trial. The primary reason for the plaintiff attorney to request a jury trial is when gross negligence applies and punitive damage awards could be available, such as in a big truck accident when the shipping company could be a negligent actor as well. This standing is assigned to the estate of the victim, many times with a designated representative making decisions on how to proceed. Family members may also have standing to sue for loss of consortium as well in separate legal actions that result in the proceeds being awarded solely to the plaintiffs. Generally, the fatal victim must have had standing to sue for personal injury had they lived following the accident.
Negotiating a Claim
Insurance companies can be very difficult when settling a wrongful death claim. Commercial carriers also fight wrongful death claims vigorously, usually attempting to control the state investigation from the beginning. A comprehensive wrongful death attorney will conduct their own investigation on behalf of the victim and their family to counter any defensive claims submitted to the court. There are often coverage caps that apply to auto policies that can limit the amount of damages available, and in many instances the negligent party has little personal assets. The low barrier for a contributory negligence claim means these negotiations are often difficult to negotiate when the defending coverage provider thinks they can win a dismissal.