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Understanding the Legal Process of Filing a Wrongful Death Lawsuit

By Jeremy Bradford
Founding Partner

Understanding the legal procedures involved with filing a wrongful death lawsuit in North Carolina can seem overwhelming, especially during a time of loss and grief. In this blog, we’ll explore what constitutes a wrongful death claim, the crucial timelines involved, and the step-by-step legal process. We will also shed light on the types of compensation available and how they are determined, giving you the information you need to face this important legal process. The North Carolina Wrongful Death Statute, outlined in North Carolina General Statute §28A-18-2 governs Wrongful Death Claims across North Carolina.

What Constitutes a Wrongful Death Claim?

A wrongful death claim arises when an individual loses their life due to the negligence or misconduct of another party. In North Carolina, this type of claim can encompass various scenarios, including fatal car, truck, or motorcycle accidents, medical malpractice, workplace incidents, defective products, criminal acts, premises liability, dangerous conditions, or other forms of negligence. Essential to establishing a wrongful death claim is proving that the death resulted directly from another’s actions or failure to act. The claim seeks to compensate for the loss suffered by the deceased’s dependents or beneficiaries. This can cover financial support, emotional distress, and loss of companionship. Understanding the specific criteria and elements that constitute a wrongful death claim is crucial for those considering legal action in such tragic circumstances.

Whom May Bring a Wrongful Death Claim?

In North Carolina, the personal representative or “executor,” of the deceased’s estate has the authority to pursue a wrongful death claim. Typically, if the deceased person had a will, the personal representative would be designated in the will. If the assigned personal representative is incapable or unwilling to serve as the executor, or if the deceased died without a will or estate plan in place, the court will assign another person. In such circumstances, surviving spouses, parents, or adult children commonly petition the court for appointment and/or selected as the personal representative. 

However, the process of obtaining an appointment as a personal representative goes beyond the scope of this article. Information on estates, estate filing, and administrative procedures can be found on the official website of the North Carolina Judicial Branch. It is advisable for the deceased’s family to seek guidance from an experienced personal injury attorney when initiating an estate.

The Importance of Timeliness: Understanding the Statute of Limitations

The statute of limitations is a legal timeframe that dictates how long you have to file a claim following a loved one’s death. In North Carolina, the statute typically allows two (2) years from the date of death. It’s crucial to be aware of this time limit to ensure your claim is filed timely, preserving your opportunity for justice and potential compensation for your loss.

The Investigation Process of a Wrongful Death Claim

  • Evidence Collection: Gathering evidence is fundamental. This includes obtaining police reports, accident reconstruction reports, medical records, and any available video or photographic evidence related to the incident causing the death.
  • Non Obvious Evidence Collection:
  • Witness Statements: Interviewing witnesses who were present at the time of the incident can provide essential firsthand accounts. Witness statements can corroborate facts, provide additional details, and strengthen the case.
  • Expert Examination: Engaging experts such as accident reconstruction specialists, medical professionals, or forensic experts may be necessary. They can provide expert opinions and analyses that support the claim.
  • Reviewing Documentation: Going through the deceased’s records, such as employment history, medical records, financial documents, or any other documents relevant to the case.
  • Understanding Liability: Determining liability is crucial. Identifying and establishing the party or parties responsible for the death is essential to the claim’s success.
  • Assessing Damages: Calculating damages is another key aspect. This involves evaluating the financial and emotional losses suffered by the deceased’s family, including lost income, funeral expenses, medical bills, and emotional suffering.
  • Coordinating with Authorities: Working alongside law enforcement agencies or other investigative bodies involved in the case can aid in information gathering and accessing official reports.
  • Preservation of Evidence: Taking steps to ensure the preservation of evidence, including securing physical evidence and documenting the scene, is crucial to prevent tampering or loss of critical information.

The Legal Process of Filing a Wrongful Death Lawsuit

  • Investigation: The first step to a wrongful death lawsuit involves gathering crucial evidence from various sources, including police reports, medical records, and witness statements, while consulting experts like accident reconstruction specialists and medical professionals. Thorough document review, interviews with witnesses and family members, and preserving evidence promptly are pivotal. The investigation aims to identify liability by assessing factors like negligence, alongside evaluating the financial impact on surviving family members. 
  • Presuit Demand and Negotiation: A presuit demand is a formal request made by the plaintiff to the defendant before initiating a lawsuit. This demand outlines the basis for the claim, including the circumstances of the incident, the injuries or damages suffered, legal theories, and compensation sought. The presuit demand serves as a starting point for settlement negotiations. Settlement negotiations aims to resolve the claim mutually, avoiding the time, expense and uncertainty associated with formal litigation
  • Initiating the Lawsuit: Next, filing a legal complaint against the party responsible for the death. This document must detail the cause of death and demonstrate the defendant’s liability. 
  • Conducting Discovery: Both sides gather evidence through the discovery process, involving document exchanges, depositions, and collecting witness testimonies to build their respective cases.
  • Mediation: Often, wrongful death lawsuits are resolved through settlements conducted at a mediation between the parties, avoiding the need for a trial.
  • Going to Trial: If a settlement is not reached, the case goes to trial, where evidence is presented before a judge or jury, who then decide on liability and damages.

Potential Damages and Compensation

In wrongful death lawsuits, the scope of damages and compensation covers both the financial and emotional repercussions of the loss. Financial damages typically include medical expenses incurred incident to death, funeral and burial costs, and the loss of the deceased’s future income. This financial support is crucial in maintaining the family’s well-being and future security. It compensates for the economic void left by the deceased’s absence, ensuring that the family’s financial needs are met.

Non-economic damages, on the other hand, address the emotional impact of the loss. They include compensation for the pain and suffering endured by the deceased before their passing and the loss of companionship, care, and guidance for the survivors. In instances where the defendant’s actions were particularly harmful or egregious, punitive damages may be awarded. These are intended not just as compensation, but also as a punishment to the defendant and a deterrent against similar future conduct. 

Bradford Law Can Help with Your Wrongful Death Lawsuit

At Bradford Law, we provide comprehensive legal support tailored to your wrongful death claim. With a thorough understanding of the complexities involved, we offer personalized guidance and represent your interests through the entire legal process. We encourage you to reach out to us for a consultation, where we can discuss your specific situation and how we can assist in seeking justice and compensation for your loss.

About the Author
I am Jeremy Bradford, the founding and managing attorney of Bradford Law. From my offices in Charlotte, NC, I travel all across North Carolina helping injured people fight against insurance companies, in what could be life-altering circumstances. I have made a point to develop strong relationships with my clients. I take the trust my clients put in me personally and put myself into every case. If my client calls, my client will always be able to speak directly with me. You will get to know me as we work our way through the personal injury process. So when we make recommendations on whether to settle or go to trial, you will know your best interests are always at heart.