Wrongful Death FAQs

Q. What is a wrongful death case?

A. A wrongful death case may be brought in Louisiana where a person dies as the result of the negligent or intentional misconduct of another. A wrongful death action can result from a death caused by any type of misconduct including automobile accidents, industrial accidents, premises liability or medical malpractice.

Q. Who can bring a wrongful death case?

A. Louisiana law designates certain survivors who are entitled to bring a wrongful death case. If the person who died (the decedent) was married, the spouse at the time of death may bring a lawsuit. If the decedent also had children, the children may bring a lawsuit as well.

If the decedent had no wife or children, then the decedent's parents are allowed to bring a lawsuit.

If the decedent has no surviving children or parents, brothers and sisters are entitled to bring a wrongful death action.

If a young child dies, the parents are entitled to bring a wrongful death action.

Who may bring a wrongful death action in any particular case may be complex, so it is best to consult with an attorney.

Q. If my relative lives for a long period of time after an injury and then dies, can I still file a wrongful death claim?

A. Yes. Two causes of action exist in this circumstance: A survival claim and a wrongful death claim. A survival action exists for the recovery of damages for pain, suffering and any other damages to the decedent from the time of injury until his or her death. The wrongful death claim will not arise until the victim dies and will compensate the persons in the above list for their injuries suffered as a result of the victim's death. Damages for wrongful death include loss of love, affection and companionship of the deceased, and the past and future grief and anguish of the survivors, loss of support, funeral and burial expenses.

Q. When must you bring a wrongful death or survival action?

A. A wrongful death and survival action must be brought within one year of the date of the decedent's death.

Q. What if the decedent was partially at fault in causing his or her own death?

A. Because Louisiana is a comparative fault state, even if the decedent was partially at fault, the person listed may still maintain an action against any other person or entity that was also at fault. Recovery will be limited by the percentage of the decedent's fault. If the persons listed are awarded $1,000,000 but the decedent is found to be 50% at fault, recovery will be limited to $500,000.

Q. What economic damages are recoverable in a wrongful death case?

A. In a wrongful death case, survivors are entitled to future monetary contributions from the decedent and the value of the decedent's personal service, advice or training that would have been given had he or she lived.

Q. Are emotional distress damages recoverable?

A. Yes. The persons listed are entitled to recover compensation for loss of love, companionship, comfort, society, affection, solace or moral support.

Q. How are damages divided between multiple heirs?

A. If the case goes to trial, the jury awards one lump sum of damages for the survival claim to the entire family. The wrongful death claim is based upon the closeness of the relationship between the heir and the decedent. It is a good idea for the heirs to determine amongst themselves how they will divide up the proceeds at the beginning of the case in order to avoid future conflicts.

Q. Do I need an attorney to pursue a wrongful death case?

A. In most wrongful death cases, it's important to consult with an attorney. Wrongful death and survival claims involve complex questions regarding who is entitled to bring a case and who is entitled to recovery. Even in cases where the death was caused by a person with a relatively low insurance policy limit, it is a good idea to seek the advice of an attorney who can determine if there are additional defendants with a greater ability to pay damages.

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