Introduction
Whenever there is a party liable for the injuries of another person, they are responsible for paying that person for any damages due to this accident. If it is the case that the person has passed away due to the accident, the party liable is still responsible.
How to File a Wrongful Death Lawsuit in Arizona
Once all of the necessary information and evidence has been collected, everything must come together to be presented in a letter of demand to the insurance company. It is important to present all of the necessary information in a clear and logical manner along with reasoning as to why the insurance claim is worth what is being asked. Insurance claims specialists are trained to pick apart letters of demand and will be able to do so easily if the letter is not well prepared.
The insurance company has a set period of time to respond. Once the claim is accepted, the insurance will provide a counter offer lower to what the original request from the letter of demand. The negotiating process is a back and forth of offer from each party until settling on an amount that is fair.
Who Can File a Wrongful Death Claim in Arizona?
The state of Arizona is specific in regards to the relationship of the person who can file a lawsuit on behalf of a deceased person. Arizona allows:
- A husband or wife
- Children
- Either parent
- Guardian
An Arizona attorney is allowed to represent any of these individuals. If none of these relatives are living, then a representative on behalf of the person’s estate can file the suit. Arizona does not acknowledge common law marriages as a legitimate form of marriage. In order to be considered a legal husband or wife in the state, you must have a valid marriage license issued by a court. The damages paid are in relation to the damages that the person incurred due to the death of their relative. If it is the estate that has filed a lawsuit, anything given in the lawsuit is to go to the deceased person’s estate.
What is the Average Wrongful Death Lawsuit Settlement?
Each case’s settlement amounts can vary and differ depending on the circumstances of the accident. The more egregious the mistake that caused the death of the victim made on the part of the defendant, the more the settlement funds the plaintiff is owed if the suit was well organized and presented. It is important to properly calculate the settlement amount to increase the chances of fair compensation, which is easier managed by an experienced wrongful death attorney.
How to Calculate Damages in a Wrongful Death Lawsuit
There is no formulaic way of calculating damages that Arizona sets out when filing a wrongful death suit. In fact, Arizona has one of the most open wrongful death legislation in the country when it comes to compensation.Some states impose limits on how much a victim of a wrongful death can claim but in Arizona, it is constitutionally forbidden to pass any such laws.
It is convenient to start chronologically, beginning from the accident and any costs that began then such as loss of income to funeral and burial expenses. The plaintiff can ask for overall income in the victim’s lifetime lost. It is also possible to estimate raises and promotions if it is within a reasonable means.Pain and suffering is also a main factor in wrongful death suits. Depending on how egregious the negligence was on the part of the defendant can affect how much more can be asked for in pain and suffering.
In the state of Arizona, however, there is such a thing as partial liability that can be taken into account in these situations. A.R.S. § 12-2506(B) states that:
- “Each defendant is liable only for the amount of damages allocated to that defendant in direct proportion to that defendant’s percentage of fault, and a separate judgment shall be entered against the defendant for that amount.”
This means that the victim may have a partial liability that could affect the outcome of the settlement. When facing this type of wrongful death suit where it can be unclear where the fault lies or if there are multiple parties at fault, it is probably useful to consult an Arizona attorney.
Is a Wrongful Death Settlement Taxable?
According to the IRS Publication 4345, wrongful death suits are under the same category as personal injury settlements. Both of these are generally non-taxable since they are seen as compensatory—or refunding the person for money lost. Any monies that were received due to a physical injury and as a consequence caused emotional or mental hardship, those are then labeled as medical expenses are compensatory and therefore are non-taxable.
However, there are conditions in which medical expenses are taxable. If the medical expense amount had already been labeled as a deduction in any tax returns prior, then the settlement must be labeled as income. Any punitive damage monies received are not categorized as compensatory and instead are seen as financial awards which must be reported as “other income” on line 21 of Form 1040 in your taxes. Punitive damages are monies that go beyond the medical costs incurred due to the accident and wrongful death.
How to Prove Fault in a Wrongful Death Claim?
In order to have a successful wrongful death suit, the person filing the lawsuit or their representative must be able to prove duty, breach, causation and damages occurred.
Duty
Duty is what the person or cooperation being sued (defendant) owed to the deceased person. This duty means that it was within the means of the defendant to reasonably provide a certain level of care for the deceased person at the time of the accident.
Breach
If the defendant that had duty towards the victim and it was not provided, then the defendant commits a breach of duty. This means that they did not adequately provide the expected level of reasonable care at the time of the accident.
Causation
Causation is the proof that due to the defendant’s actions or inactions, the accident that led to the death of the person was their fault. Had they acted otherwise, the accident would not have occurred.
Damages
The harm proven to have happened to the person due to the accident caused by the defendant is the damages. These damages must have a proven connection between the accident and the defendant. This can come in the form of photographic proof, written statements, people that witnessed the accident, or even recordings if possible.
What is the Discover Rule in Wrongful Death Cases?
There is a way to work with the statute of limitations so to extend the time in which you can file suit. This can happen when using the discovery rule. At the time of death of the victim, there are cases in which the injury is not apparent when the accident occurred. The discovery rule is used to extend the statute of limitations in situations like these. The statute of limitation begins at the time that it was discovered that the accident or wrongdoing was what caused the death. It could also be at a point where it was reasonable to have discovered that this was the case.
You must be able to prove that it was not possible to know of the injury until it was in order to use the discovery rule in the suit. An Arizona attorney with knowledge of the discovery rule and the specifics of each case can best pinpoint the time the injuries could have been discovered.
How Long Does it Take to Settle a Wrongful Death Case?
Wrongful death suits are a case by case basis in regards to the time that is takes to complete. There are some that are a shorter term and more simple than others due to the clarity of the accident and/or where the responsibility lies. More commonly, they are rarely less than a year if there was due diligence and is more common to see these types of suits go on a minimum range of a year to several. It is important to understand the time it takes to build a strong case against the defendant. Evidence from the scene must be collected; medical records, bills, and even professional witnesses may be needed in order to make a case with no unanswered questions. This will show how the responsible party’s duties to pay as close to the full amount as possible during the settlement no matter if they attempt to prolong the process of settlement.
Insurance companies are known to use time in their favor when dealing with wrongful death suits. If it is obvious where the responsibility lies, insurance companies are willing to expedite the process in order to avoid a court date. This way, they are able to potentially save money where the courts would side with the plaintiffs and fully award them. When the responsibility is not so clear the suit is prolonged to possibly discourage the plaintiffs or have weaker evidence be forgotten. This is why it is important to take the time to build a strong case for whatever position the insurance companies may take.
What Does it Cost to Hire a Wrongful Death Attorney?
Depending on the firm that you contract, you may be charged an hourly rate or a contingency fee. An hourly rate charges the client per hour that the attorney works on the case but allows the plaintiff to keep all of the settlement. Attorney hourly rates vary anywhere from $100-$500 or sometimes more depending on the firm. This most commonly requires a retainer which means a large amount of money given upfront to the attorney.
Contingency fees don’t usually require any out of pocket costs for the client. Instead, the attorney works on the case and once the settlement is made the attorney take a percentage from that. If the case is unsuccessful the attorney does not receive compensation for time spent.
Call our Personal Injury team at (480) 467-4392 to discuss your case today.
