An accident victim’s death from her injuries can be a “wrongful death” under personal injury law. These are truly heartbreaking cases. Why? They’ve died in a preventable accident caused by someone’s negligence.
All too often, our law firm demands justice for accident victims who died from injuries sustained due to mistakes or carelessness.
Seldom do those responsible for these fatal accidents voluntarily accept liability for what they’ve done. Usually, claims must be made and lawsuits filed.
Here, grieving loved ones must gather the strength and grace to fight with us. They act on behalf of someone they’ve lost to the negligent acts of another. Imagine how difficult this is for those who are dealing with so much.
Death Cases Are Complicated Under State Law
It’s a complicated situation in either Illinois or Indiana, where survivors and family members seek redress for fatal injuries. Special laws apply here.
Both state legislatures have statutes governing how these cases are to be filed, and how they work insofar as damages.
There are also special laws controlling specific kinds of wrongful death cases, such as medical malpractice cases involving patient death. Added to these complexities are the changes that are debated by lawmakers to the Wrongful Death Laws, like the recent Senate Bill 124 presented to the 2016 Indiana General Assembly.
We’ve discussed the issue of wrongful death in Indiana and Illinois before. We’ve also included the language of both wrongful death statutes passed in Indiana and Illinois for easy reference here on our site.
To try and simplify things further, this week we provide two check lists covering areas of wrongful death laws of Indiana and Illinois. Today, we focus on Indiana. In our next post, we’ll concentrate on Illinois.
10 Things to Know About Indiana Wrongful Death Claims
Here are ten things to know about how wrongful death claims based upon fatal accidents caused by the actions (or failures to act) of another are handled under Indiana Wrongful Death law:
1. Three Different Laws
Indiana has three different wrongful death statutes. Each is independent or mutually exclusive from the other two laws. They are:
- The General Wrongful Death Statute;
- The Adult Wrongful Death Statute;
- The Child Wrongful Death Statute.
2. Personal Representative
In an Indiana wrongful death case, someone has to be appointed as “personal representative” of the deceased victim. They are the person who acts as the plaintiff in the case, acting on behalf of the person who died in the accident in the pursuit of justice. This is the person who sits at the counsel table with the lawyers in court during trial.
3. Child Who Dies in an Accident in Indiana
Can there be a worse tragedy than when a child dies in an accident? Indiana law recognizes that a parent can be compensated with damages for the death of their child due to the negligent of someone else.
That has only been true for the past 25 years or so, when the Child Wrongful Death Law was passed. Until this law was passed, parents of children who perished in accidents had no legally recognized wrongful death case to bring in court.
4. Damages for the Wrongful Death of a Child in Indiana
Currently, there is no legal limit to the amount of damages that can be awarded in Indiana for the wrongful death of a child. The jury can decide whatever they think is proper.
However, “child” is defined in the statute as being under 20 years of age at the date of death or 23 years of age if still in school (at a “institute of higher learning”). The accident victim must be proven to meet the definition of “child” under the law in order for damages to be awarded.
5. Criminal Cases Operate Independently From Wrongful Death Claims
There may be criminal investigations in the wrongful death of someone in Indiana. Either the federal authorities (the United States Attorney) or the local prosecutors operating under state law will work with police on building a case and pursuing those found responsible for the fatality.
Criminal charges may involve DUI / drunk-driving manslaughter or vehicular homicide charges, for instance. Domestic violence may be involved or even things like armed robbery, assault, or murder.
However, these cases will be filed under criminal laws in the criminal justice system. They will work independently of any civil case filed under the state’s wrongful death statutes.
6. Damages Allowed For Certain Family Members
Under Indiana’s wrongful death laws, the legislature has listed the people who are eligible to be awarded damages for the wrongful death of their loved one. Parents are recognized for the death of their child, for instance.
Husbands, wives, and children are also eligible to receive wrongful death damages in the State of Indiana.
7. How Damages Are Distributed Between Family Members
The Indiana wrongful death laws provide for how a wrongful death damages award is to be shared among the family members. The total award determined by the jury will be split among those defined as eligible to receive the wrongful death award.
8. Time Limit for Filing a Wrongful Death Case in Indiana
Under the “statutes of limitations” for the State of Indiana, a wrongful death lawsuit must be filed with the clerk within TWO years of the date of death. After that, it is barred as being filed passed the deadline. (The case can be filed, but the defendant will move to dismiss based upon the limitations statute.)
9. Medical Malpractice and Wrongful Death in Indiana
When someone dies as the result of a doctor’s error or the failure of a hospital or health care provider, then special medical malpractice laws will apply to the case. Wrongful death cases involving medical malpractice are a special kind of wrongful death lawsuit. See, “Indiana jury awards record $9.5 Million verdict in obese patient death,” written by Kara Kenney and published June 20, 2016 on the IndyChannel.Com.
10. Attorneys’ Fees Under Indiana Wrongful Death Laws
Who covers the legal fees that are expended to fight for justice and win the wrongful death case? The Indiana Supreme Court held that attorneys’ fees were not recoverable under the General Wrongful Death Statute in SCI Propane, LLC v. Frederick, 39 N.E.3d 675 (Ind. 2015). And as we discussed this summer, there has been legislative action regarding this issue in Senate Bill 124. We maintain that those who are responsible for the fatal accident should be required under the law to cover legal fees needed to advance wrongful death claims in Indiana.
In our next post, we’ll concentrate on Illinois Wrongful Death laws. Let’s be careful out there!