Unfortunately, there is no Kelley Blue Book website for lawyers
where they can punch in the vital information of your case and
the extent of your injuries and it will spit out the exact value.
Each case is different. One case may be worth $250,000 while
a similar case may be worth only $175,000. It is impossible to
list all of the factors that go into deciding how much your case
is worth. These factors can include:

  • Past and future medical expenses
  • Permanency of injury
  • Lost wages or disability
  • Loss of earning power
  • Pain and suffering
  • Loss of enjoyment of life
  • Chronic pain
  • Psychological trauma
  • Property damage
  • Which part of the state you were injured in (Some regions
    are known for their generous verdicts while others are
    known for their stinginess.)
  • Who the injured party is (Cute kids generally bring in a
    much higher award than the average adult.)
  • The makeup of the individual jury
  • The appearance, confidence, credentials, and believability
    of your witnesses as compared to those of the defendant
  • How you come across to the jury during your testimony
  • Last but not least, the appearance, presentation and competency
    of your attorney

One case can result in a jury’s verdict of $2 million, while a
substantially similar case tried in front of another jury in a different
part of the state may bring in only $500,000—or even a
defense verdict! In fact, two cases involving basically the same
set of circumstances may result in drastically different awards,
even if they were tried in the same courthouse but before different
judges and juries.

Lawyers subscribe to services that tell them how much similar
cases are settling for or how much juries are awarding in like
cases. However, when it comes down to it, this all depends on
the variables of: (1) how sympathetic your client comes across,
(2) who the defendant is and how evil she looks, and (3) how
clear liability is. The clearer the liability, the more willing the
jury is to put a higher amount on the injuries and damages you
suffered.

When someone is killed because of another person’s carelessness
(negligence) or deliberate misconduct, this is called a
“wrongful death.” For instance, if a person is killed in an automobile
accident caused by another motorist who ignored a stop
sign, we call that a wrongful death since the death was caused
by another person’s carelessness.

Who Can Sue For The Wrongful Death of Another?

The wrongful death of a person often affects many other people:
a spouse, children, grandchildren, employers, friends, and so
forth, but only certain persons are entitled to sue the wrongdoer
for specified damages. If a 35-year-old married man with three
children is killed in an automobile accident caused by another
driver’s negligence, the spouse (widow) and his three children
(the survivors) can all sue the negligent driver. If the man was
supporting someone else, such as his elderly parents or a minor
under 18, they can also sue to recover their monetary losses,
i.e., the money they reasonably could have expected to receive
from the deceased person had he not been killed.

What Types of Damages Can the Survivors Sue For?

In a wrongful death jury trial in California, it is the jury who
will ultimately decide how much money will reasonably compensate
the survivor for the loss of the decedent. This compensation
is called “damages.”

The monetary damages that the jury may award the survivors
in a successful wrongful death lawsuit are those that
“under all the circumstances of the case, may be just.” The
survivors are entitled to sue for any and all medical expenses
that may have been incurred in attempting to save the victim’s
life, if such damages have not been recovered in a “survival
action.” The survivors are also entitled to sue for the lost wages
and earnings that the decedent would have contributed to the
household during his working years, taking into account raises,
bonuses, promotions, and any other types of compensation he
would have received from his employer.

Suppose that instead of a 35-year-old working man, the
person who was killed was the stay-at-home wife/mother.
Since she wasn’t working at a paying job, can the survivors seek
compensation for “lost earnings?” In the case of a non-working
spouse who stays at home and takes care of the children and
house, the surviving spouse and children are entitled to receive
full and adequate compensation for the loss of services the
decedent would have contributed to the household. Studies
show that it would cost in the area of $100,000 to hire persons
to take the full place of the deceased parent or spouse. For
example, who would make the family’s meals, get the children
ready for school, go shopping for groceries and clothes, do the
laundry, prepare the meals, take the kids to dance rehearsals or
Boy Scout meetings, etc.?

Although each heir’s loss will be different from the others,
only one wrongful death lawsuit may be filed. The heir filing
the lawsuit must include all of the other heirs entitled to a share
of the estate. For instance, if a woman died leaving a husband
and three children, if one of the children files a wrongful death
action, she must list the decedent’s husband and other two children
as claimants (“plaintiffs”) as well.

One issue with wrongful death cases involving more than
one plaintiff is the division of the settlement or award. The jury
(or judge, if the trial is by court) must compute the damages by
considering the pecuniary loss suffered to all of the heirs and
return a verdict for one lump sum. It is then up to the judge
to divide the total amount of damages among the individual
plaintiffs.

In making her determination as to how much to award each
individual plaintiff, the judge will consider such things as the
closeness of decedent and the heir, the nature of their relationship,
how long they had known each other, the amount of support
the decedent was providing for the heir, and other factors.

Evidence that the decedent was unhappy in his marriage
and told others that he planned on getting a divorce from his
wife does not defeat the wife’s claim for damages resulting from
her husband’s death if no legal action had been taken by the
deceased husband, such as obtaining a legal separation or filing
for divorce, as couples frequently have disagreements or hard
times that make them reassess whether it is worth staying in
their marriage. Indeed, even the most happily married couples
occasionally have spats in which one threatens to get a divorce.
While evidence of a statement that a married person did not
get along with his spouse and was going to get a divorce does
not bar the other spouse from receiving a share of the wrongful
death settlement or award, it may reduce the surviving
spouse’s share if it bears on the nature and closeness of their
relationship.

In California, if a wrongful death case involving multiple
plaintiffs is settled out of court and the parties are unable to
agree among themselves as to the division of the award, they
will have to file an action in court and have a hearing before
a judge who will make the ultimate determination as to the
settlement’s allocation among the heirs. Alternatively, the heirs
may agree to have the issue of the division of the settlement
proceeds settled out of courts, such as by binding arbitration.

Among the damages recoverable in a wrongful death
action in California are economic damages and non-economic
damages.

Economic Damages in a Wrongful Death Action:

  • Financial support that the decedent would have contributed
    to the family during the life expectancy of the
    decedent
  • The loss of gifts or benefits
  • Funeral and burial expenses
  • Reasonable value of household services

Non-Economic Damages in a Wrongful Death Action:

  • Loss of love, companionship, comfort, care, assistance,
    protection, affection, society, and moral support
  • Loss of enjoyment of sexual relations (if applicable)
  • Loss of training and guidance

The following cannot be considered by a jury when determining
loss:

  • Grief, sorrow, or mental anguish
  • Pain and suffering
  • Poverty or wealth of the plaintiff

Survival Actions

In California, a survival cause of action can be filed by the
estate’s personal representative or the decedent’s successor-in-interest.
A survival cause of action can only be brought if the
decedent did not immediately die from his or her injuries. A
wrongful death survival action may be appropriate even if the
deceased lived for a short time after the incident.

Damages recoverable under the statute include “the loss or
damage that the decedent sustained or incurred before death,
including any penalties or punitive or exemplary damages that
the decedent would have been entitled to recover had the decedent
lived, and do not include damages for pain, suffering, or
disfigurement.”

Essentially, the survival statute allows one to “step into the
shoes” of the deceased and recover the damages the deceased
person would have been entitled to had they lived, including
medical expenses and lost wages, as well as penalties or punitive
or exemplary damages. One cannot recover damages for
pain, suffering, or disfigurement in a survival action.

If you have been injured due to the carelessness of another,
the negligent party is responsible for paying all necessary and
reasonable medical costs associated with the injury or injuries.
Examples could include: (1) the cost of an ambulance to transport
you to the hospital; (2) doctors’ and hospital expenses;
and (3) the costs of all other medical services. The negligent
party is also legally responsible for all of your future medical
costs attributable to the accident. Additionally, if you need a
wheelchair or a full- or part-time attendant, the negligent party
must also pay for these.

You are also entitled to recover monetary damages for all
of your lost wages past, present, and future. If you are permanently
disabled from working as a result of the accident, the
amount of your lost wages will be determined by what you
would have expected to earn had you not been injured, including
raises, bonuses, and promotions. That amount, however,
will be reduced (“discounted”) to its current value. This means
that the amount you would have earned during your lifetime
will be reduced to a lump sum that, if invested, would yield how
much you would have earned over the next 10, 20, or however
many years you would have expected to go on working. If you
are permanently injured but are still able to work, although
not at your old job and not for the same amount of money you
were earning, you are entitled to recover the difference between
what you would have made and what you are actually making,
the difference being your loss of earning power.

In addition to all medical-related costs and lost earnings,
you are entitled to be compensated for pain and suffering arising
from the accident, as well as all psychological injuries you
suffered as a result of the accident, which often must be supported
by the testimony of a psychologist or psychiatrist.

There are two types of damages that can be recovered: economic
and non-economic damages. Economic damages include
such things as: (1) past, present, and future medical expenses
(bills from emergency rooms, hospitals, doctors, physical
therapists, rehabilitation therapists, prosthetist, prostheses,
wheelchairs, special beds, personal attendants, etc.), and (2)
the amount of lost wages or lost earning power, whether the
victim will be able to return to work or will have to be retrained
for a different profession or occupation, or will be permanently
unable to work.

The so-called “non-economic” losses for which you can
recover monetary damages include: (1) the intensity and
duration of your pain and suffering, (2) emotional distress
and mental anguish, (3) physical impairment, (4) grief (but
not in wrongful death cases), (5) anxiety, (6) humiliation, (7)
inconvenience, (8) fear, anger, and worry, (9) disfigurement,
and (10) the “loss of enjoyment of life.” Loss of enjoyment of
life covers things you used to be able to do but are no longer
capable of doing. For instance, if a right-handed father has his
right arm amputated and is no longer able to play catch with his
son, this is considered part of his loss of enjoyment of life and
he deserves to be compensated.

The amount of damages should not only compensate you for
damages and injuries you have already suffered, but include
compensation for future medical expenses, pain and suffering,
new prostheses, complications, etc. Also considered in the
amount of your monetary recovery are whether you were in any
way responsible for the accident or your injuries (“comparative
negligence”), and the amount of insurance and assets the party
at fault has.