Glossary of Wrongful Death Terms
The Eastern KY wrongful death attorneys of the Johnson Law Firm realize that many people find the law to be a daunting subject
Filled with complicated procedural rules and archaic terms, it is indeed complex. In an effort to address this as it pertains to wrongful death, we offer these easy-to-reference definitions. Of course, everyone’s situation is unique, and specific questions should be directed to a personal injury lawyer. For more than 15 years, the Johnson Law Firm has been in the business of helping injured people and their families. Based in Pikeville, KY, we proudly serve communities throughout the Bluegrass State. Stop by or call for a free, confidential consultation with our wrongful death attorney and you’ll understand why we have been called the “nicest place in town.” We can be reached at 606-437-4488 or you can use our online contact form.
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Beneficiary: a person entitled to receive amounts held in trust. Examples include immediate family members, distant family members, domestic or life partners, and financial dependents.
Cause of action: The most important part of a plaintiff’s case, the cause of action is the legal theory that forms the basis of the lawsuit. Each element must be clearly stated in the complaint and must be supported by the facts and by the law.
Civil action: Wrongful death cases are civil actions that stem from someone’s death. This is in contrast to criminal cases, which can be filed only by a government seeking to punish a person for behaving against the public welfare. They are not mutually exclusive. Lawsuits based on wrongful death grounds can be brought against defendants who have faced criminal charges. For example, Michael Jackson’s father filed a wrongful death action against Dr. Conrad Murray, the physician who administered fatal doses of anesthesia to the entertainer. The civil action was resolved in the doctor’s favor even though he was found guilty in the criminal action of involuntary manslaughter. In another famous case, O.J. Simpson was found not guilty of killing his ex-wife and her friend, but their families were awarded $33.5 million in a subsequent wrongful death suit.
Claim: Lawsuits stem from disregarded demands for relief. These demands are legally known as claims and can be made for property, money due, or for enforcement of a right.
Complaint: The pleading that begins a lawsuit, filed by the plaintiff and answered by the defendant.
Damages: Losses for which a survivor might be able to receive financial compensation. In wrongful death actions, these include the medical bills incurred by the decedent due to the injury, the decedent’s pre-death pain and suffering, funeral and burial costs, loss of the decedent’s expected earnings, and loss of consortium by a spouse or minor child. Kentucky also allows for awarding of punitive damages, which are intended to punish the defendant for the conduct rather than compensate the decedent’s estate.
Decedent: the person who died.
Guardian: appointed by a court when the minor children are involved, to look out for their interests and manage their affairs.
Loss of consortium: One type of emotional damages that can be awarded in Kentucky. Refers to care, affection, or companionship lost due to the wrongful death of a person’s spouse or a minor child’s parent.
Personal representative: An individual appointed by a probate court to oversee the decedent’s assets. In Kentucky, this person is the one who files a wrongful death action on behalf of the decedent’s estate to compensate for losses suffered due to the decedent’s death. However, any amount recovered is held in trust and disbursed to the proper beneficiaries.
Pleading: The formal papers filed with the court listing the parties’ positions, such as the complaint, the answer, any counterclaims, and any cross-claims.
Probate: The legal process that handles a decedent’s estate. A personal representative must be appointed by the probate court prior to the filing of a wrongful death action.
Proof: The burden of proof in a civil action is one of a “preponderance of the evidence.” This is a lower standard than the one of “beyond reasonable doubt.” required in a criminal case. A successful wrongful death case must be able show that the decedent’s death was caused by the defendant’s negligence or intentional act and resulted in measurable damages.
Real parties in interest: The people on whose behalf the personal representative files the wrongful death action. Kentucky law allows family members to receive wrongful death compensation in this order:
- Surviving spouse receives the entire award if there are no children.
- If there is a surviving spouse and surviving children, they divide the award equally.
- Surviving children receive the entire award if there is no surviving spouse.
- If there is no surviving spouse nor surviving children, the decedent’s surviving parents receive the entire award.
- If there are no children, parents, or spouse, the award goes to the decedent’s estate to pay any debts, and any remainder is distributed according to the decedent’s will.
Survival Actions: A decedent’s family may recover damages for the pain and suffering that the decedent endured prior to death. This action “survives” the decedent and benefits the estate.
Wrongful Death: When a person dies due to the reckless, deliberate, or negligent behavior of someone else, the surviving members of the decedent’s family may be able to file a lawsuit to receive financial compensation for their loss. Common wrongful death examples include those resulting from vehicle accidents and defective products.
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