Glossary of Commonly-Used Wrongful Death Terms
Many persons who have had limited dealings with the law can find it difficult to understand the processes. Legal procedures are frequently complex, employing arcane procedural rules and terms. If you are considering a wrongful death action, it would be best to consult an attorney experienced in such matters, such as the legal team at McNeely Stephenson. Let Mike Stephenson assist you in your time of need. Contact Mike today using our contact form, or call 1-317-825-5200.
What is Wrongful Death?
Wrongful death is an area of civil law. Any death caused by another’s carelessness or intent to harm can often serve as the basis for a wrongful death action. A wrongful death suit must demonstrate that the decedent’s death was caused either by the negligent or the intentional actions of the defendant, and that such actions resulted in damages arising from the wrongful death.
It is our hope that you will find the glossary helpful and useful.
Alternative Dispute Resolution (ADR)
The use of arbitration, mediation, or other negotiation tactics to assist in settling wrongful death claims without resorting to litigation.
A case that is tried in front of a judge, but not in front of a jury.
A person with a legal right to receive funds held in trust, such as the beneficiary of an insurance policy. Those related to the decedent by blood, by marriage, or who are financial dependents are all examples of potential beneficiaries.
It must be proved that one party caused injury to the deceased, leading to their death, in order for the other party to receive monetary damages.
Cause of action
A theory that underpins the lawsuit’s claim. All parts of the theory must be supported by both facts and law and must appear in the claim.
A civil action is brought by a private person or entity that is seeking legal relief from the court. A criminal action is one in which the government brings charges against a person. One type of case does not exclude the other. Wrongful death suits can be brought after a criminal action has been brought against defendants, even if the criminal action fails.
A pleading (meaning legal papers filed with the court) initiating the lawsuit filed by the plaintiff.
The losses suffered by the plaintiff for which they seek to receive financial compensation. For wrongful death cases, damages can include medical expenses, final expenses, the decedent’s pain and suffering, loss of the decedent’s future earnings, and loss of consortium. Punitive damages are allowed in Indiana but can be capped.
The person who died.
The person or entity defending against the suit and from whom the plaintiff seeks damages.
A time before the trial when attorneys for both sides gather evidence from opposing parties by various means, such as depositions and requests for documents.
Someone appointed by the court to look after a minor’s best interests.
The insurance company representative investigating claims for damages.
The party who is alleged to be at fault or responsible for causing the wrongful death is said to have liability.
A claim by another party who provided services to the deceased, which is often a health care provider or insurance company. See Subrogation, below.
Loss of consortium
The loss of affection and companionship to a spouse or child due to the wrongful death.
The legal concept that a party failed to exercise reasonable and due care that would have been expected of any other party in a similar situation, thus creating the circumstances leading to the wrongful death. One example of negligence is driving under the influence. Negligence is distinguished from intentional behavior, in which the harm is deliberate.
Pain and suffering
Mental and physical anguish for which a plaintiff can seek damages by use of a tort action. See Tort below.
The individual appointed by the court to watch over the decedent’s assets. This person is generally the one who files the wrongful death action.
The party initiating a lawsuit.
Formal papers delineating the parties’ positions, including counterclaims and crossclaims, which are filed with the court.
The legal procedure that processes a decedent’s estate. A probate court will appoint a personal representative. This must occur before a wrongful death action can be brought.
In a civil action such as a tort action, the burden of proof rests on the standard “a preponderance of the evidence.” A criminal action, on the other hand, has a higher standard of proof resting on the standard “beyond a reasonable doubt.”
Real parties in interest
The person(s) for whom the personal representative files the wrongful death action.
Statute of limitations
The period of time that limits when a plaintiff can file a suit on behalf of the decedent.
A claim by a party that has paid the costs for the decedent for which they seek to recover those costs from the party who caused the injury leading to death. Subrogation involves a third-party claim.
The family of the decedent attempting to recover damages for pain and suffering endured by the decedent that benefits the estate.
Either the act, or the failure to act, that caused the wrongful death, whether intentional or negligent. Civil cases use torts as grounds for suits.
We realize that filing a wrongful death suit may be the last thing on your mind while you are grieving. However, a wrongful death suit, while it cannot bring back your loved one, can hold a party responsible, providing the financial resources you may need to recover from the loss.