When a tragic accident leads to the death of a loved one, the repercussions can feel overwhelming. Their death raises so many questions, no matter how they died. With almost 43,000 traffic accident deaths last year - and numbers steadily increasing - more and more families must deal with the aftermath of an automobile accident death tragedy. Whether you lose a parent, spouse, or child in a crash, the effects are life-changing in many different ways.
When car accident victims die suddenly because of someone else's negligent or careless behavior, it's crucial to know what to do next. A Chicago car accident lawyer who understands Illinois Wrongful Death laws can help you pursue compensation after you lose a family member in a tragic accident. Call a wrongful death attorney in your area immediately if your loved one lost their life in an automobile accident.
What is an Illinois Wrongful Death Claim?
Someone who dies in a tragic accident is legally known as a decedent. When you lose a family member in an auto accident, you not only lose part of your emotional support system, but you may also lose significant financial support. Under the Illinois Wrongful Death Act found at 740 ILCS 180, surviving family members can bring legal action to request compensation from a party whose negligence caused the decedent's death.
Wrongful death claims allow family members to receive economic damages from the responsible party who caused the automobile accident death. The decedent's legal representative acts on behalf of the surviving family members and steps into the position of the decedent to recover the legal damages they could have received if they had survived.
The goal of a wrongful death claim is to help the surviving family members receive certain financial payments to cover the costs of the decedent's last medical bills, funeral expenses, and more. The statute also allows the representative to request damages for “...grief, sorrow, and mental suffering.” The ability to recover damages depends on the family members' personal relationships with the deceased.
What are the Basic Requirements For a Wrongful Death Claim?
Illinois law establishes certain requirements for a successful wrongful death claim, including:
- The decedent’s personal representative–often the spouse–must be appointed to initiate the wrongful death lawsuit on behalf of all next of kin.
- Next of kin include the decedent’s natural children and natural parents. Also, under the statute, an “adopting parent” and an “adopted child” have the same rights as natural parents and children.
- Illinois courts distribute the judgments and/or agreed settlement amounts among the surviving spouse and next of kin. Distribution is based upon a person’s “...percentage of dependency…” upon the deceased person. Damage calculations take into account all other beneficiaries’ dependency percentages.
- If there is no surviving spouse or next of kin, the law provides a process for distributing the wrongful death proceeds. For example, hospitals, medical providers, and others may receive the proceeds of a decedent’s wrongful death lawsuit. The personal representative also receives a fee for administering the estate.
- After a traffic accident death, the statute of limitations that governs wrongful death actions expires two years after the date of the accident in most cases. However, shorter one-year statutes may apply for certain defendants. If the personal representative doesn’t settle the claim or file a wrongful death lawsuit by that deadline, the decedent’s family gives up its right to file a claim for damages against the at-fault parties.
What are the Elements of a Wrongful Death Case?
Under Illinois' wrongful death statutes, damage recovery is based on the personal representative's ability to prove that the other driver’s negligence caused the accident. Similar to personal injury cases, there must be evidence showing the other driver was at fault and that their actions or inactions caused the automobile accident death.
When someone sustains fatal injuries in a tragic accident, civil courts must decide who is liable based on the surviving driver’s testimony, available physical evidence, witness accounts, and police officers’ opinions. Courts may even find negligence on the part of both drivers but still order partial payment to the decedent’s family under a wrongful death claim.
Potential Wrongful Death Defenses
As in any other lawsuit, the defendants will likely contest the claims' allegations. To prove a wrongful death claim, the personal representative's attorney must prove that the defendant's negligent actions caused your loved one's car accident death. If the representative cannot prove each element of negligence, the court will not award wrongful death compensation.
Defendants will try to disprove one or more of the elements of negligence. If they can attack one element successfully, the court can dismiss your case. For example, they may argue that the decedent caused the accident or that it was unavoidable. A skilled accident attorney can refute these defenses and protect your legal rights during negotiations or at trial.
With so much at stake, it's crucial that you don't try to represent yourself or family members. An experienced traffic accident death attorney can help you prove your case by anticipating the defense's arguments and dispelling them to ensure you receive the compensation you deserve.
Will the Insurance Company Fight My Wrongful Death Claim?
Insurance companies are for-profit businesses, meaning the company's priority is to protect its bottom line. An insurance company may avoid paying your settlement by claiming that the deceased was somehow at fault. It may also claim that the injuries you have suffered because you lost a loved one are not as severe as you claim.
If an insurance company cannot avoid accepting fault, insurance defense lawyers will work to minimize your damages. If you provide an insurer with a statement about the accident or your injuries, they will use your comments to decrease your odds of a successful claim. Always speak to an attorney before speaking to anyone from the opposing side's insurance company.
Often, liability insurers may try to settle your claim for several reasons.
- They can’t predict how much a judge or jury might award.
- Insurance companies prefer to settle quickly because injury values often increase as time passes.
- They want to take advantage of the opportunity to settle your case for a low amount before you seek legal representation.
Again, this is why you need an attorney to protect you at every stage of a wrongful death lawsuit.
How is the Value of a Wrongful Death Claim Determined?
Placing a monetary value on your loved one's life is impossible. There is no way to assign an economic value to all the memories you shared or the pain and grief you feel now that they are gone. However, an important part of a wrongful death case is determining the value of the harm your family suffered after losing your loved one in a tragic accident caused by someone else.
A compassionate wrongful death attorney will work closely with you as you consider the damages portion of your case. This topic is sensitive, but here are some issues the insurance company and the court will consider when determining damages in a wrongful death lawsuit.
The Decedent’s Earning Capacity
The insurance company and the court will examine your loved one’s earning capacity as they try to assign a monetary value to your wrongful death claim. The decedent's education, current employment, salary, and future earning potential are all considerations when determining a fair amount for damages. Your attorney may use this information to support the amount of compensation requested in the lawsuit.
The Decedent’s Health
Your loved one's life expectancy plays an important role when determining the amount of reasonable damages to award. An older decedent may justify less compensation than a young person who died in the prime of their life. A deceased person who suffered from numerous health conditions that would likely shorten their life might also recover less than a healthy person.
Whether the Decedent Left Children Behind
A decedent who had minor dependent children may recover more than one with adult children or no kids. The children of the decedent need and deserve financial support. Your attorney will likely argue for a larger settlement if the decedent supported minor children.
Overall, there is no way to know what your case is worth until it ends. That is why you need an attorney working on your behalf as you pursue compensation. Don't try to handle a wrongful death claim on your own. It is hard enough to grieve the loss of a loved one. You certainly should not have to deal with the pressures of a legal claim and navigating the maze of court systems and procedures. If you have lost a loved one to a traffic accident death, call a wrongful death attorney in your area.
How Will I Receive Payment For a Wrongful Death Judgment?
If your wrongful death claim goes to court, the defendant must pay the judgment a judge or jury awards. However, some defendants cannot pay the full amount ordered immediately. In that case, there are several ways wrongful death claims can be paid to plaintiffs.
Ultimately, you want to receive payment as quickly as possible and in full. Here are a few payment options that might apply to your wrongful death judgment.
Lump Sum Payments
A lump sum payment is one payment in full of the money awarded in a wrongful death lawsuit. Lump sum payments are the most common way for plaintiffs to receive their money if the defendant is insured. The defendant’s insurance company will pay the entire judgment if the defendant is found responsible for the decedent's car accident death.
Periodic Payments
Setting up a periodic payment plan may be the best way to recover your judgment if the defendant does not have insurance or does not have enough insurance to pay the judgment amount in one lump sum. Payment plans will have specific payment dates and a clear schedule so the surviving family members know when to expect compensation. Your attorney may suggest setting up a periodic payment schedule with the defendant if they cannot pay the judgment in full immediately.
How Are Wrongful Death Settlements Distributed?
After choosing a payment structure, the next thing to focus on is how to distribute the funds to beneficiaries. The decedent's spouse and children receive the money from a wrongful death settlement. The personal representative is responsible for ensuring all payments are distributed according to the law.
Some jurisdictions prohibit minor children from receiving wrongful death proceeds until they are adults. In those areas, the percentage of the settlement that belongs to the child is typically placed into a trust until the child reaches eighteen years old.
Does the IRS Tax Wrongful Death Settlements?
Wrongful death damages are a form of compensatory damages, and the IRS usually doesn’t tax them. However, when you receive settlement proceeds, consult a tax professional to determine your potential liability for tax obligations.
What Should I Do If the Defendant Does Not Pay the Judgment?
Sometimes, wrongful death plaintiffs face a situation when the defendant fails to pay the settlement award. Sometimes, defendants refuse to pay, but others do not have the money to pay a settlement. If the defendant does not pay, the personal representative has some options to secure payment of the judgment.
File a Motion in Court
Your attorney may need to file a court motion to enforce the judgment. This may be the simplest way to get the defendant to pay your money. You can discuss this option with your attorney to determine if this is the best option for you, but filing a motion to enforce the judgment is usually the first step.
Garnishment
Garnishment is a separate legal action designed to recover money from a defendant in a wrongful death action. Garnishment allows a plaintiff to receive a portion of the defendant’s income until the judgment is satisfied. Your wrongful death lawyer may be willing to take on your garnishment case if they have the experience, but if they do not, they may refer you to a garnishment lawyer they trust.
Seizing Personal Assets
Another avenue to collect money from a wrongful death case is to pursue the defendant's assets. If the defendant owns any valuable property, you can attach and seize it in place of the money owed. Seizing a defendant's assets can get complicated quickly. If you want to collect your judgment this way, talk to your attorney about it.
How Are the Decedent's Debts Paid?
The personal representative may also recover the same financial damages the decedent would have been eligible to receive if they had survived the accident. A wrongful death claim should include final medical bills and property damages since wrongful death settlement money must generally pay outstanding medical bills before the rest goes to the surviving family members.
How Can an Attorney Help Me After a Traffic Accident Death?
If you work with an attorney to represent you in a wrongful death case, your family can focus on grieving and supporting each other while leaving the legal issues to the attorneys. If you lost a loved one in a tragic accident caused by another person's or business's negligence, call an experienced wrongful death attorney in your area.
During a wrongful death case, an attorney can:
- Negotiate with the insurance company for you. The last thing you should have to worry about after losing a loved one is dealing with an intimidating or aggressive insurance company. A car accident death lawyer will take care of all settlement negotiations so you can focus on caring for yourself and your family.
- Build your case. Your attorney will start building your case from your first meeting. As the lawsuit continues, you and your attorney will discuss your damages and how the accident changed your life. These details will help your attorney prove your case and increase your odds of a larger settlement amount.
- Keep you informed throughout the case. A compassionate wrongful death attorney will keep you informed during the claim and litigation process. They will provide solid legal advice and ensure you understand every option so you can make the best possible decisions.
Can I Afford an Attorney?
If you lost a loved one in an automobile accident death, do not worry about paying for legal services. Many accident attorneys across the country represent wrongful death accident victims on a contingency fee basis. A contingency fee arrangement allows clients to defer payment for legal services until the case is resolved.
If you and your attorney agree to work on a contingency basis, you will pay no legal fees upfront. Your attorney's fees will be a percentage of the final resolution, and that amount will be specifically described in a written agreement at the start.
Contact a Dedicated Wrongful Death Attorney at Abels & Annes, P.C. Today
An experienced accident attorney can help ease the burden of losing a loved one in a wrongful death accident. While grieving, you deserve as large a support system as possible. An automobile accident death lawyer can take on the burden of dealing with insurance companies and defense lawyers, negotiating settlement terms, and representing your interests at trial.
If you have lost a loved one in a traffic accident death, contact an experienced accident injury attorney at Abels & Annes for a free consultation. Call us at (312) 924-7575 or fill out our online contact form today.
David Abels
Partner
David Abels has carved a niche for himself in the personal injury law sector, dedicating a substantial part of his career since 1997 to representing victims of various accidents. With a law practice that spans over two decades, his expertise has been consistently recognized within the legal community.
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