Answering Questions Including the Scope of Damages, Who Can File Suit, and How to Act
Wrongful death lawsuits are a trying ordeal for the family and friends of the victim. It's not easy to manage grief and litigation simultaneously, but while no amount of money can make up for such a loss, the well-being of those individuals who depended upon the descendant may now depend upon obtaining an equitable recovery. Here are five things you need to know when the worst happens: 1. Who can file a New Jersey wrongful death lawsuit? And when?
N.J.S.A. 2A:31-2 sets forth the applicable standard:
Every action commenced under this chapter shall be brought in the name of an administrator ad prosequendum of the decedent for whose death damages are sought, except where the decedent dies testate and his will is probated, in which event the executor named in the will and qualifying, or the administrator with the will annexed, as the case may be, shall bring the action.”
So typically, the Executor (if the deceased died with a valid Will) or the appointed General Administrator serving as “Administrator ad Prosequendum” (if the deceased died without a Will) is responsible for bringing the lawsuit.
Generally, New Jersey wrongful death lawsuits must be brought before the court within two (2) years of the allegedly wrongful death. When the clock begins running, however, could be fact-specific. Consult an attorney as soon as possible to discuss this issue in greater detail.
2. Who can recover from a wrongful death judgment?
It's fact-specific. Here's what N.J.S.A. 2A:31-4 says:
The amount recovered in proceedings under this chapter shall be for the exclusive benefit of the persons entitled to take any intestate personal property of the decedent and in the proportions in which they are entitled to take the same. If any of the persons so entitled were dependent on the decedent at his death, they shall take the same as though they were the sole persons so entitled, in such proportions, as shall be determined by the court without a jury, and as will result in a fair and equitable apportionment of the amount recovered, among them, taking into account in such determination, but not limited necessarily thereby, the age of the dependents, their physical and mental condition, the necessity or desirability of providing them with educational facilities, their financial condition and the availability to them of other means of support, present and future, and any other relevant factors which will contribute to a fair and equitable apportionment of the amount recovered.”
Potential beneficiaries include the deceased individual's spouse, children, or even parents. A law firm will be retained to represent the estate which, in turn, is represented by the Executor or Administrator ad Prosequendum.
This all-important portion of the case is adjudicated by a judge at a special apportionment hearing after a verdict or settlement is reached. These monies are NOT a part of the decedent's estate.
In New Jersey, money recovered from the survival action is divided according to the decedent's Last Will and Testament. Money recovered for wrongful death is distributed pursuant to applicable state law which take account of a myriad of factors including the dependency of the prospective beneficiaries. Guardians are appointed to represent the interests of any minor beneficiaries.
3. What types of damages available?
In New Jersey limit, punitive damages are available but they're subject to a cap of $350,000 or 5-times compensatory damages, whichever is greater.
Generally, there is no limit on compensatory damages recovered in a New Jersey wrongful death lawsuit. The survival claim-related damages are based on the decedent's physical pain and suffering; wrongful death damages are economic-based. Overall, damages in a wrongful death case may include, but are not limited to lost earnings, funeral expenses, and even lost companionship.
4. What about emotional pain and suffering?
No, unless a beneficiary actually witnessed the wrongful act in which case a typically-challenging negligent infliction of emotional distress claim can be brought.
5. What should I do if I believe a loved one died as a result of negligent, wrongful, and/or intentional tortious behavior?
Contact an attorney at your earliest convenience!
This is a trying time, but for the good of everyone your deceased loved one left behind, it is important to pursue your rights after the worst happens. If you have questions about your wrongful death case and how the South Jersey law firm of DeMichele and DeMichele P.C. can help you, e-mail us or call today at (856) 546-1350. We are very interested in answering your questions and giving you a free case evaluation. Let us put our civil litigation experience in Camden County, Burlington County, Gloucester County and Atlantic County to work for you!