Wrongful Death FAQs

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Neblett, Beard & Arsenault knows you have questions about filing a wrongful death claim and the statute of limitations for filing. We post answers to your most critical questions on our website.

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  • If my family member was killed in a pedestrian accident, what are my legal options?

    Losing a family member in a pedestrian accident can be emotionally devastating. Although taking legal action won't bring your loved one back, the funds from a wrongful death settlement can help alleviate some of the financial strain you may experience as a result of the incident. Wrongful death pedestrian accidents

    About Wrongful Death Claims for Pedestrian Accidents

    Pedestrians are 1.5 times more likely than the occupants of passenger vehicles to be killed in a car crash. According to the Centers for Disease Control and Prevention (CDC), the United States has a pedestrian fatality every 1.6 hours. Fatal accidents are most likely to occur at night, in urban areas, or in non-intersection locations. Victims are most often children or adults over the age of 65.

    A wrongful death action alleges that a person has died due to the fault of another. Winning the case requires you to establish the following:

    • The defendant owed the deceased person a duty of care.
    • The defendant breached that duty of care.
    • The breach of duty caused the death.
    • The death caused the damages you want to recover.

    In a pedestrian accident case, you typically must present evidence that the driver who struck and killed the pedestrian was operating his vehicle in a negligent and careless manner. This could include:

    • Speeding
    • Running a red light
    • Texting and driving
    • Drunk driving
    • Driving despite a medical condition that impairs reflexes and coordination

    Witness testimony, photos, accident reconstructions, and medical records are some of the types of evidence that might be presented. Expert testimony related to specific aspects of the case may also be required.

    It is important to note that a wrongful death lawsuit is a type of civil action. This means, the only penalty the defendant faces is monetary in nature. However, some pedestrian accidents may involve both criminal and civil charges. In these cases, evidence from the criminal case can be used to support the civil wrongful death claim.

    Eligibility to File a Wrongful Death Claim

    Only certain family members can file a wrongful death claim after a fatal accident. Louisiana law states:

    • If the deceased was married, the surviving spouse or children must file the claim.
    • If the deceased was unmarried and not a parent, his surviving parents must file the claim.
    • If there is no spouse, child, or parent to file, the surviving siblings of the deceased person can initiate the claim.
    • If there is no surviving spouse, child, parent, or sibling, the surviving grandparents of the deceased person can file the claim.
    • If there are no surviving family members, the deceased person's estate can bring the claim to court.

    People related by adoption have the same legal rights as those related by blood or marriage. However, if a parent abandoned the deceased person during childhood, that parent forfeits the right to file a claim.

    Damages Awarded in a Wrongful Death Claim

    A wrongful death claim includes damages for both economic and non-economic losses. Economic losses include:

    • Medical expenses related to the deceased person's fatal injury
    • Reasonable funeral and burial costs
    • Lost wages and benefits
    • Value of lost household services
    • Bills for damaged property (if applicable)

    Non-economic damages are those which can't be proven by producing a receipt or bill. This includes:

    • Pain and suffering in the deceased person's final moments
    • The family's loss of care, companionship, guidance, and emotional support as the result of the deceased person's death
    • Punitive damages, which are rarely awarded but are intended solely to punish the defendant

    Since wrongful death claims are based on the person's anticipated life expectancy, it's important to note that settlements are higher when the deceased person is a child or young adult. 

    How Neblett, Beard & Arsenault Can Help

    There is a one-year statute of limitations to file a wrongful death claim under Louisiana law. However, it's best to contact an attorney immediately. Evidence can be lost as time passes, so taking prompt legal action ensures that you have the highest possible chance of a fair settlement.

    The attorneys at Neblett, Beard & Arsenault have extensive experience helping Louisiana residents take legal action after the wrongful death of their loved ones. Contact us online or call us directly at 318.588.6303 to schedule your free consultation.

     

  • How are funds divided in a wrongful death settlement?

    Suffering the loss of a loved one is never easy, but a wrongful death settlement can provide a sense of closure when the death was caused by the negligent conduct of another party. However, you may find yourself wondering how the funds from this legal action will be divided. Wrongful death funds

    Components of a Wrongful Death Settlement

    Compensation in a wrongful death case includes the following types of damages:

    • Pre-death pain and suffering
    • Medical expenses incurred before death
    • Funeral and burial costs
    • Compensation for lost care and companionship
    • Punitive damages, if the death involved particularly negligent or malicious conduct on the part of the defendant

    Distribution of Funds

    Wrongful death cases are typically accepted on a contingency fee basis, which means the attorney who handles the case is entitled to a percentage of the settlement as the fee for legal services. There may also be additional expenses related to the preparation of the case that aren't included in the contingency fee, depending on the terms of the attorney's contract.

    Louisiana law places no specific limitation on how wrongful death settlements are distributed between family members. However, it is most common for the funds to be considered part of the deceased person's estate.

    If the deceased died with a will in place, the settlement is distributed according to the terms of the will. If the deceased died without a will in place, the settlement is distributed using intestate laws. These rules can be quite complicated, but the general guidelines are as follows:

    • If the deceased had children but no spouse, parents, or siblings, the children inherit everything.
    • If the deceased had a spouse but no children, parents, or siblings, the spouse inherits everything.
    • If the deceased had living parents but no spouse, children, or siblings, the parents inherit everything.
    • If the deceased had siblings but no spouse, children, or parents, the siblings inherit everything.
    • If the deceased had a spouse and children, the spouse has the right to use the deceased's share of the community property for life. The children inherit the deceased's share of community property subject to the surviving spouse's right to use it for life, plus all of the deceased's separate property.
    • If the deceased has a spouse and living parents, the spouse inherits all of the community property and the parents inherit the separate property.
    • If the deceased has a spouse and siblings but no parents, the spouse inherits all of the community property and the siblings inherit the separate property.
    • If the deceased had siblings and parents but no spouse, the parents have the right to use intestate property for life, then the siblings inherit everything.

    When the children entitled to an inheritance are minors, a guardian ad litem is typically appointed to make sure their interests are protected. This is considered a necessary step due to the inability of a minor child to be financially self-supporting without a parent's income.

    Special Circumstances

    In the majority of cases, the heirs of the deceased are able to come to an agreement using general state guidelines or the provisions of the deceased person's will. However, there are a number of special circumstances that can trigger disputes:

    • Separated but not divorced couples
    • Stepchildren raised by the deceased
    • Foster children in the process of being adopted
    • Children born outside of marriage
    • Half siblings
    • Parents who did not maintain constant contact with their children
    • Individuals who are not immediate family but were financially dependent on the deceased person

    When there is disagreement among those involved, parties may each retain an attorney to advocate for their interests in the distribution of the settlement. This can add considerable time and expense to the process, but it may be considered necessary if there is a sizable settlement to be distributed.

    Protecting Your Legal Rights

    Wrongful death cases can be quite complicated, but the legal team at Neblett, Beard & Arsenault is committed to advocating for your rights throughout the process of resolving a wrongful death claim.  To learn more, please contact us online or call us directly at 318.588.6303 for a free consultation.

     

  • What funeral expenses are covered in a wrongful death claim?

    Funeral and burial costs can be included as part of the damages in a wrongful death claim, as long as they are considered reasonable and you can provide proof of payment. Wrongful death and funeral costs

    Initial Responsibility for Funeral Costs

    Louisiana state law specifically outlines who is tasked with making funeral and body disposition arrangements after someone passes away. In order of succession, this responsibility falls to:

    • Whoever is specially named in previously prepared arrangements
    • Surviving spouse
    • Adult children
    • Adult grandchildren
    • Parents
    • Siblings
    • Next of kin
    • District court judge, if no other family members are available

    This order of succession is very similar to who can file a wrongful death claim in Louisiana:

    • If the deceased person was married, his/her spouse must file the wrongful death claim.
    • If the student had a child, the adult child or minor child's guardian must file the claim on behalf of the deceased.
    • When there is no spouse, child, or parent, the siblings must file the wrongful death claim.
    • When there is no spouse, child, parent, or siblings, the surviving grandparents must file the claim.

    Types of Funeral Expenses Included in a Wrongful Death Claim

    Funeral and burial expenses will initially need to be paid out of pocket, unless the deceased person had made prepaid funeral arrangements. Some of the expenses you may encounter for a traditional full-service funeral include:

    • Basic services fee for the funeral director and staff
    • Pickup of body
    • Embalming and other necessary preparation of body
    • Casket
    • Vault or outer burial container
    • Visitation/viewing charge for staff and facilities
    • Funeral or memorial service charge for staff and facilities
    • Graveside service charge for staff and necessary equipment
    • Officiant fee
    • Fees for musicians performing at the service
    • Flowers
    • Programs and other printed materials
    • Hearse
    • Other vehicles as necessary to transport family members
    • Cost of lot or crypt
    • Perpetual care fee charged by cemetery
    • Charges for the opening and closing of the grave or crypt
    • Grave liner, if required
    • Grave marker or monument
    • Obituary/death notices published in local newspapers

    Defining Reasonable Funeral Costs

    In 2017, a survey by the National Funeral Directors Association found that the average cost for an adult funeral was $8,755. This estimation of costs did not include charges assessed by the cemetery or the charge for the grave marker or monument. These costs are estimated to add $2,000 or more to the total.

    The cost of a casket can vary widely. An average casket sells for about $2,000, but models with copper, bronze, or mahogany embellishments can cost $10,000 or more. Cremation is growing in popularity, reducing the cost of a funeral by about one third.

    To receive reimbursement for funeral and burial costs paid out of pocket or by the estate of the deceased, you'll will need to show copies of bills and invoices documenting the charge for each associated item. By law, the funeral home must provide you with a General Price List (GPL) for your records. This contains a detailed breakdown of the cost for each service provided.

    If your funeral costs greatly exceed the cost of an average adult funeral, you should be aware that you may not receive full reimbursement. However, any expenses you can document will be helpful in allowing your attorney to assess the worth of your case.

    Filing a Wrongful Death Claim

    Louisiana law requires that a wrongful death suit be filed within one year. In addition to reasonable funeral and burial costs, you can include damages for:

    • Any medical expenses the deceased incurred if death did not occur immediately
    • Loss of future earning potential
    • Pain and suffering in the deceased person's final moments
    • Loss of the deceased person's companionship and support

    Neblett, Beard & Arsenault's experienced attorneys are committed to advocating for the needs of those who've lost a loved one due to the negligence of others. Call today to schedule a free, no-obligation initial consultation.

     

  • When can punitive damages be included in a wrongful death claim?

    Punitive damages, sometimes called exemplary damages, are monetary awards that are intended solely to punish a particular type of conduct or make an example of the offender. Punitive damages are seldom included as part of a wrongful death claim. Punitive damages and wrongful death

    Including Punitive Damages in a Wrongful Death Claim

    Punitive damages are generally not allowed in Louisiana wrongful death claims as a matter of law. To receive punitive damages, the conduct must rise far above the level of negligence required to win a wrongful death claim. This includes acts described as reckless, malicious, willful, wanton, or extremely negligent.

    Specific examples of when Louisiana courts will allow punitive damages include:

    • Drunk driving. Punitive damages are not typically allowed in fatal car accidents, but Louisiana courts have ruled that a drunk driver responsible for a fatality can be held liable for wrongful death punitive damages.
    • Domestic violence. Punitive damages can be allowed when the death is caused by domestic violence from an intimate partner.
    • Cases involving juvenile pornography and sexual activity/statutory rape. When harm is caused to minors as the result of pornography or sexual activity, punitive damages may be awarded.

    Borrowing Punitive Damages From Another State

    Rules regarding punitive damages vary widely from state to state, with some states allowing punitive damages in a much broader range of wrongful death claims. In rare circumstances, Louisiana allows you to “borrow” the punitive damage laws of another state.

    Louisiana Civil Code article 3546 reads:

    Punitive damages may not be awarded by a court of this state unless authorized:

    (1) By the law of the state where the injurious conduct occurred and by either the law of the state where the resulting injury occurred or the law of the place where the person whose conduct caused the injury was domiciled; or

    (2) By the law of the state in which the injury occurred and by the law of the state where the person whose conduct caused the injury was domiciled.

    Applying this test can be quite complicated, so it's best to consult with an attorney to learn if your claim qualifies.

    Monetary Limits to Punitive Damages

    Although punitive damages are not intended to compensate you for specific losses, they do have a limit. This limit varies by state. In most cases, Louisiana awards for punitive damages may not exceed the actual compensatory damages by a factor of 10. Compensatory damages are those which provide reimbursement for specific losses you have suffered. This includes medical expenses up to the time of death, funeral and burial costs, and the value of the deceased individual's lost future earning capacity.

    You'll need to provide documentation of all compensatory damages related to medical expenses and funeral or burial costs. To evaluate the value of lost future earning capacity, an expert will be called to calculate earnings based on equation, work history, industry trends, life expectancy, and other relevant factors.

    Impact of Criminal Charges

    A wrongful death claim is a type of civil action, which means that it is separate from the criminal penalties such as jail time that may apply to the conduct that caused the death. However, evidence related to a criminal case can be used to support your claim for damages. For example, the fact that a defendant was convicted of a DUI for driving with a blood alcohol level twice the legal limit would support negligence as well as a request for punitive damages.

    How Neblett, Beard & Arsenault Can Help

    Wrongful death cases can be quite complicated, which is why it's in your best interests to seek legal representation as soon possible. The statute of limitations for wrongful death claims in Louisiana is one year from the date of death.

    The legal team at Neblett, Beard & Arsenault can advocate for your needs throughout the process of resolving a wrongful death claim. Call today to schedule a free, no-obligation initial consultation.

     

  • If the person who killed my loved one was charged with a crime, why should I file a wrongful death suit?

    If you've lost a loved one due to the negligence of another party, both criminal and civil legal action may be taken. Understanding the difference between criminal charges and a wrongful death claim can help you best protect your rights during this difficult time. Criminal and civil cases

    Criminal Charges Filed After a Death

    After a person's death, law enforcement officials will evaluate the circumstances to determine if any laws were broken. The most common criminal charges related to a wrongful death include:

    • Involuntary Manslaughter: The defendant is accused of unlawful killing without malice or intent, typically causing a death as the result of reckless or negligent behavior.
    • Voluntary Manslaughter: The defendant is accused of killing with intent, usually with provocation, but with less blame than murder.
    • Second Degree Murder: The defendant is accused of the unlawful death of another person with malice and intent, but the death was not premeditated.
    • First Degree Murder: The most serious murder charge, this accuses the defendant of unlawful death that is intentional and premeditated.

    Other criminal charges may be related to the specific circumstances of the death such as a DUI if a pedestrian was killed in a fatal drunk driving accident, underage alcohol possession related to a hazing death, or illegal gun possession related to a firearm accident involving a child.

    Someone who is convicted of criminal charges will face fines as well as jail time and/or probation. Prison sentences can run concurrently or consecutively. Concurrent sentences for multiple charges are served at the same time, while consecutive sentences are served back to back.

    Filing a Wrongful Death Claim

    A wrongful death claim is a civil action filed by family members of the deceased. There are specific rules regarding who has the standing to file a wrongful death claim:

    • If the deceased person was married, the spouse must file a wrongful death claim.
    • If the deceased person had a child, the adult child or minor child's guardian must file the claim.
    • If there is no spouse, child, or parent, the siblings must file the claim.
    • If there is no spouse, child, parent, or siblings, the surviving grandparents must file the claim.

    A wrongful death claim seeks monetary damages awarded to the family and the estate of the deceased. This includes payment for:

    • Medical expenses, if the deceased did not die immediately
    • Funeral and burial costs
    • Loss of future earnings
    • Pain and suffering in the deceased person's final moments
    • The family's loss of the care and companionship of their loved one

    How Criminal Charges Affect a Wrongful Death Claim

    A conviction in a criminal case can be used to support your claim that the defendant is liable for the death of your loved one. However, it is quite possible for someone to be found guilty of a wrongful death even if they are acquitted of criminal charges. The reason is that a wrongful death action has a different standard of proof.

    In a civil claim, you must prove liability based on a "preponderance of the evidence."  Essentially, this means it is more likely than not that the defendant is liable for the wrongful death.

    In a criminal case, the prosecutor must prove guilt beyond a reasonable doubt. This is the highest burden of proof in the legal system, which is a standard meant to prevent innocent people from being convicted of crimes they did not commit.

    The most famous example of the difference between criminal charges and a wrongful death claim is the case of O.J. Simpson. The former football player was found not guilty of murdering his ex-wife and her new boyfriend but was ordered to pay damages in the wrongful death claim that followed the acquittal.

    Neblett, Beard & Arsenault Can Help

    Neblett, Beard & Arsenault attorneys are dedicated to protecting your interests throughout the process of resolving a wrongful death claim. Call today to schedule a free, no-obligation initial consultation.

     

  • Do I have a wrongful death claim if my college student has died during a hazing ritual?

    College is supposed to be a time of growth and exploration, but hazing rituals can cut a young person's promising future short. If you've lost a family member due to a hazing-related accident, you may be eligible to file a wrongful death claim.

    A wrongful death claim is a type of personal injury case that alleges a person's death was caused by the defendant's negligence. Hazing often qualifies as negligence due to the risky acts that are involved.  Wrongful death and college hazing

    About Hazing

    Hazing is sometimes a part of the ritual young people undergo to join a fraternity or sorority. Athletes on some sports teams may also take part in hazing.

    Hazing is often dismissed as just a harmless series of pranks designed to foster a sense of community within the group. However, hazing can have serious consequences. For example:

    • Physical injuries can occur from being made to run laps, do pushups, or perform other exercises to excess.
    • Physical injuries can occur from beatings administered by other members of the group.
    • Adverse mental health consequences can occur from sleep deprivation and exposure to continued verbal abuse.
    • Frostbite or heat exhaustion can occur from being outside too long during extreme temperatures.
    • Alcohol poisoning can occur from being made to participate in dangerous drinking games.
    • Car accidents can occur related to alcohol consumption, sleep deprivation, or dangerous stunts such as drag racing.

    Even though hazing is formally banned on most college campuses, there are multiple instances of hazing-related injuries and fatal accidents each year.

    Eligibility to File a Wrongful Death Claim

    In most cases of a hazing-related death, the parents of the deceased student must be the ones to file the claim. However, other family members may be eligible to file in the following certain circumstances:

    • If the student's parents are deceased, his/her siblings must file the wrongful death claim.
    • If the student's parents are deceased and there are no siblings, the surviving grandparents must file the claim.
    • If the student was married, his/her spouse must file the wrongful death claim.
    • If the student had a child, the child's guardian must file the claim on his/her behalf.

    If the parents of the deceased student abandoned him/her during childhood, they are not eligible to file a wrongful death claim. Legally, parental abandonment is treated as though the parent is deceased and thus not available to file the claim.

    No matter who must file the claim, Louisiana's statute of limitations requires that the wrongful death suit be filed within one year. If you wait too long to file, you lose your right to compensation.

    Liability for Hazing-Related Deaths

    A wrongful death claim related to hazing may seek damages from:

    • The college or university where the hazing took place
    • The fraternity, sorority, or organization the participants were members of
    • The individuals who took part in the hazing incident

    Criminal charges related to the hazing incident such as charges for alcohol offenses can be used to support your claim. However, since a wrongful death suit is a type of civil action, you can still file even if no one was criminally charged in the hazing death.

    Types of Damages

    A wrongful death claim can include the following damages:

    • Medical expenses before death
    • Funeral and burial costs
    • Loss of future earning potential
    • Pain and suffering in the deceased person's final moments
    • Loss of the deceased person’s companionship and support

    In hazing cases, loss of future earning potential is likely to be the largest part of the settlement. Even though a student may not have been working at the time of death, he/she was presumably training for a professional career. Compensation would be based on the average life expectancy and earning potential of someone with a similar academic major and like performance. Expert testimony is typically needed to establish the value of the deceased person's future earning potential.

    How Neblett, Beard & Arsenault Can Help

    The legal team at Neblett, Beard & Arsenault is committed to advocating for the needs of those who've lost a loved one due to the negligence of others. Contact us online or call us directly at 318.588.6303 today to schedule a free, no-obligation case review.

     

  • Do I have a wrongful death claim if my child died from playing with an unsecured firearm?

    Gun violence is tragic in any circumstance, but a child's death due to an unsecured firearm is heartbreaking. If your child was fatally wounded after gaining access to an unsecured firearm, you may have the basis of a valid wrongful death claim. Children and unsecured firearms

    About Firearm-Related Wrongful Death Claims

    Children do not understand the risks involved in handling a firearm. A very young child may associate guns with what he has seen in cartoons and not realize the consequences of a shooting.

    A child who is old enough to understand that guns are dangerous may not fully understand how to safely use a gun. Firearms require special knowledge and training to operate. Accidental shootings involving guns the shooter didn't realize were loaded often occur when preteens or teens gain access to an unsecured weapon.

    Gunshot wounds are classified as grazing injuries, penetrating injuries, or perforating injuries. A bullet that strikes a person but doesn't break the skin is called a grazing injury. A bullet that becomes lodged inside the body after penetrating the skin is called a penetrating injury. A bullet that enters and exits the body at two different points is called a perforating injury. Both penetrating and perforating wounds can be fatal.

    Wrongful death cases are a type of personal injury lawsuit alleging that a person's death was caused by the negligence of the defendant. Children can't be held responsible for their actions to the extent that an adult would be, but someone who doesn't take steps to store guns away from curious children can be held liable for a death that results.

    Eligibility to File a Wrongful Death Claim

    In Louisiana, a wrongful death claim must be filed within one year. The parents of the child must file the claim in most cases. However, parents who are considered to have abandoned their children are not eligible to file. Parental abandonment is treated as though the parent is deceased for the purpose of filing a wrongful death claim.

    If a child's parent is not eligible to file a claim, the surviving siblings must file. If there are no siblings, the claim must be filed by the grandparents.

    Liability for Firearm-Related Deaths

    There are a number of different parties who might be legally responsible for a child's wrongful death from an unsecured firearm:

    • The owners of the home where the child was killed
    • The owner of the unsecured firearm
    • The owners of the business, if the child was killed at a daycare center or other public establishment
    • The parents or guardians of the underage shooter, if the incident involved more than one child

    Criminal Charges and Civil Cases

    In many cases involving the shooting of a child, criminal charges are filed. Any criminal charges related to the incident can be used to support your claim that the defendant was negligent.

    However, it is important to remember that a wrongful death claim is a type of civil action. This means, you can still pursue a case even if no one was criminally charged in the child's death.

    Types of Damages in a Wrongful Death Settlement

    No amount of money can ever replace a child's life, but legal action can provide families with a sense of closure regarding the incident. A wrongful death settlement for a child's firearm-related death can include:

    • Medical expenses incurred before death
    • Funeral and burial costs
    • Loss of the child's future earning potential
    • Pain and suffering in the deceased child's final moments
    • Loss of the child's personal care, companionship, and support

    Punitive damages are not awarded in all wrongful death cases, but they can sometimes be included if the circumstances involve especially severe cases of reckless disregard for the safety of others. Punitive damages are intended to punish the defendant and deter future misbehavior.

    The Value of Skilled Representation

    In any wrongful death claim, it's vital that you work with an experienced attorney who is familiar with Louisiana's personal injury laws. Your attorney will gather evidence to support your claim of negligence, find applicable expert witnesses to testify on your behalf, and work to negotiate the highest possible settlement.

    Neblett, Beard & Arsenault is committed to advocating for the needs of those who've lost a child due to the negligence of others. Contact us online or call us directly at 318.588.6303 to schedule a free, no-obligation case review.