Wrongful Death and Survivor Actions

201612.16
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Have you lost someone to wrongful death? At Bryan, diStefano & Mattingley, we understand that you are going through an extremely painful and difficult time in your life.  We are here to help.

What is wrongful death?

Wrongful death is where a person dies or is killed due to the wrongful act or neglect of another. It is where an innocent person loses their life at the hands of someone else.

Claims based on this death can follow from a number of situations including medical malpractice, car or other accident, occupational exposure to hazardous conditions, criminal behavior or homicide.

What claims can be made?

When a person suffers a wrongful death, there are two types of claims that can be made.

  1. Survival action.

A survival action is personal to the decedent for damages suffered by the decedent between the wrongful act and his or her death. Any recovery for such damage belongs to the decedent’s estate and is administered as an estate asset. Essentially, a survival action is a personal injury case but the injured person is no longer able to pursue it on his or her own behalf. In order to bring a survival action, the decedent must have survived for some appreciable amount of time after the accident and before his or her death.

  1. Wrongful death action.

In contrast, a wrongful death action seeks damages that pertain to the personal loss of the survivors. These survivors can include a surviving spouse and children, or parents of a deceased minor child. Also, parents of an adult decedent may recover wrongful death damages for loss of consortium when there was “significant evidence of an extraordinarily close and interdependent relationship.” Damages can include sorrow, mental distress, and grief.

When and how should I file a wrongful death claim?

Under Montana Code Annotated section 27-2-204, a wrongful death claim must be filed within three years of the date of the deceased person’s death. Where the wrongful death is the result of homicide, the claim must be filed within 10 years.

Wrongful death and survival actions must be brought together at the same time by the personal representative of the estate.

Do I need an attorney?

The skilled attorneys at Bryan, diStefano & Mattingley can help you navigate these issues while respecting the extremely difficult and trying time you are going through.  They can evaluate whether you are being offered a fair settlement.  If you are not, they can help you pursue your case to trial to obtain the verdict you are entitled to.