Wrongful Death FAQs

What is a wrongful death claim? 

A wrongful death claim is a civil suit filed against another due to the negligence they caused that resulted in your loved one’s death. Wrongful death claims can be filed in cases where, had the injured person survived, they would have been able to file a personal injury lawsuit against the responsible party. 

What is a survival action claim?

A survival action claim is another type of personal injury claim that allows you to seek damages against the responsible party. However, there are limitations on the damages you can seek. Survival action claims are common when your loved one did not die immediately. 

They can include compensation for damages they experienced from the time of their accident until their death. Furthermore, you can file a survival action claim along with wrongful death claims.  

What constitutes a wrongful death case? 

A wrongful death case can occur when an individual dies as the result of another’s negligence or act of harm. Cases can include catastrophic accidents, assaults, motor vehicle accidents, impaired driving accidents, and medical malpractice. 

However, a wrongful death case can only be filed when the person’s death is deemed intentional. In other words, when the other party failed to provide a duty of care either by acting or not acting, they could be held accountable for wrongful death. 

Who can file a wrongful death claim in Colorado?

Who can file a wrongful death claim in Colorado depends on your relationship to the deceased as defined by Colorado law as follows:

Within the first year after death:

Only the surviving spouse can file a wrongful death claim in Colorado within the first year. However, the spouse can choose to allow surviving children to file the claim or join them in filing the claim. However, the spouse must put this in writing. 

In cases where the deceased person was unmarried, their surviving children can file the claim, or a designated beneficiary can file the claim if there are no surviving children. 

Within the second year after death:

If a claim is not filed within the first year, any of the following can file a wrongful death claim:

• The surviving spouse.
• The surviving children.
• The surviving spouse and children. 
• The designated beneficiary.
• The designated beneficiary and the surviving children.

What if the deceased has no children, no spouse, and no designated beneficiary?

In situations where the deceased person was not married, did not have children, and did not designate a beneficiary in the event of their death, the person’s parents can file the wrongful death claim. 

Regardless of who files, it is essential to do so before the statute of limitations runs out. Once it does, you will not be able to bring any claim for damages against the responsible party.  

How does a wrongful death case work, and what is the process?

After the death of a loved one, two legal systems will come into play: the civil justice system and the criminal justice system. The civil justice system allows survivors to seek damages and compensation for their loss. The criminal justice system ensures laws governing society are being upheld. 

When you file a wrongful death case with a wrongful death lawyer, they will conduct an independent investigation and gather evidence proving negligence to support your claim. This is the first step in the civil justice system process. 

The next step is for your lawyer to file and submit a claim for damages against the responsible party and their insurance company when they are covered by liability insurance. This is the start of the settlement stage of a civil case. 

During this stage, your lawyer will go back and forth with the other party and their lawyer in an attempt to reach a fair and just settlement. Most wrongful death cases will be settled and never go to trial. 

However, if settlement is not possible, the case moves to the second stage, where it is formally filed with the court. At this point, the court will take control of the case to keep it moving. 

The court proceedings include discovery meetings, additional attempts at settlement, court-required mediation, and the trial, should settlement or mediation not work. At trial, a jury will hear evidence and testimony from both parties. 

They will then decide on a verdict and rule either for the plaintiff or the defendant. If they rule for the plaintiff, they will also announce the amount of damages they would like the judge to award. In addition to the jury’s request for damages, the judge could decide to award punitive damages.  

What are the common causes of wrongful death cases?

Wrongful death can occur through different negligent or intentional acts of another, including:

• Car Accidents
• Construction Accidents
• Work Accidents
• Criminal Acts
• Motorcycle Accidents
• Boating Accidents
• Medical Malpractice
• Pedestrian Accidents
• Bicycle Accidents
• Premises Liability Accidents
• Nursing Home Accidents
• Dangerous or Recalled Products
• Dangerous or Recalled Drugs

As such, you have the legal right to seek damages for your loss by filing a wrongful death case against the responsible party.

What damages can be recovered in a wrongful death case?

The types of damages you can recover in a wrongful death case are monetary. While money cannot truly compensate for the loss of a loved one, it is what is allowed by the law since we cannot be compensated through retribution. Monetary losses that could be recovered include the following three categories:

Economic Losses

Economic losses are financial losses you experience from the death of your loved one. They can include past and future wages, all medical expenses, and funeral expenses.  

Non-Economic Losses

Non-economic losses cover emotional losses one experiences after losing a loved one tragically, such as:

• Pain and Suffering
• Loss of Enjoyment of Life
• Emotional Distress
• Loss of Companionship 
• Loss of Consortium

Punitive Damages

A judge awards punitive damages in situations where the wrongful death case goes to trial and the jury finds in favor of the plaintiff. These types of damages are also called exemplary damages. They are meant to punish the responsible party and set an example to others when the defendant’s actions were grossly reckless, willful, wanton, or intentional. 

What rules do Colorado statutes have about damages recoverable in wrongful death claims?

There can be limitations on damages depending on the type of damages. For instance, there is no cap on economic damages since these are actual financial losses. 

However, there is a cap for non-economic damages. This cap amounts to $250,000 up to $500,000 if you can provide convincing and clear evidence. Convincing and clear evidence must have a higher standard than a preponderance of evidence and must show the claim is highly likely, and there is relatively no doubt. 

Should the pain and suffering be related to a medical malpractice wrongful death claim, the cap is $300,000. Yet, in cases where the death was intentional and considered a felonious killing, there may be no caps on non-economic damages. 

With punitive damages, Colorado statutes place a cap on these to not exceed the total amount of compensatory damages awarded. Compensatory damages include both economic and non-economic damages. 

For example, the jury awards $1.5 million in compensatory damages. Then a judge could not award more than $1.5 million in punitive damages. Although, there are a few exceptions where the judge could increase the limit by up to three times the amount of compensatory damage. 

Why are there wrongful death damage caps?

There are wrongful death damage caps because they prevent excessively large settlements or jury awards from occurring where it would not be feasible for the responsible party ever to pay the damages. In addition, caps help the surviving family members filing the wrongful death claim establish realistic expectations about the amount of monetary compensation they could receive. 

How often are punitive damages recovered in a wrongful death action?

Punitive damages are only awarded in a small percentage of wrongful death cases. Therefore, having your Colorado wrongful death attorneys present clear evidence of the defendant’s conduct is essential to establish the recklessness that resulted in your loved one’s death.  

What are all the parties involved in a wrongful death case? 

• Personal Injury Attorneys – Attorneys who specialize in tort law for personal injury and wrongful death cases. 

• Defendant – The person or party believed to be negligent for the death of another.  

• Plaintiff (Complainant) – The surviving family member(s) filing the wrongful death case. 

• Process Server – The person who serves subpoenas and summons.

• Witness – One who was present at the time of the accident and can provide testimony of the events that led to the death of another.  

• Expert Witness – A professional witness that can provide an expert opinion as to the fault of the defendant. 

• Judge – The judge oversees the trial when wrongful death cases go to court and helps ensure the proceedings move along at a reasonable pace. 

• Jury – The individuals responsible for determining the verdict in a wrongful death case.

• Court Reporter – The person who records verbal testimony given during dispositions, hearings, and at trial. 

Can someone sue for the pain and suffering of a decedent? 

In the event your loved one did not die immediately and sustained catastrophic injuries that eventually led to their death, you may have grounds to seek compensation for their pain and suffering. This would be filed as part of your wrongful death lawsuit.  

How can I file a claim for wrongful death? 

The easiest way to file a claim for wrongful death is to get assistance from Bachus & Schanker and our Elite Litigation Group. Our goal is to help alleviate the stress and anxiety during your time of loss so you can grieve without outside distractions. Your legal team is here to help you and your family navigate all the legal aspects of a sudden loss and to advocate for your rights. 

How can a wrongful death lawyer help me?

Navigating the complexities of filing a wrongful death lawsuit requires help from Colorado personal injury attorneys with experience in wrongful death cases. Additionally, these cases can take time to resolve due to the significant amount of monetary damages you may be entitled to receive. 

Having a wrongful death lawyer ensures a strong case with the necessary evidence to justify your claim. In addition, having our lawyer manage your claim allows you to focus on your family and healing without added outside distractions. 

Sources:

C.R.S. 13-20-101. (2022).

C.R.S. 13-21-102. (2022).

C.R.S. 13-21-201. (2022).

C.R.S. 13-21-202. (2022). C.R.S. 13-21-203. (2022).