Losing a spouse or another close family member to an accident is a shock. And sometimes, certain legal circumstances might prevent the family victims of a wrongful death from directly receiving civil damages for the loss of their deceased family member’s affection, personal guidance, full financial value, and other pecuniary losses.
This is especially true if it was a workplace accident which took that loved one; the employer’s Workers Compensation Insurance covers some of the expenses but also protects the employer from common civil lawsuits to collect the difference. Sometimes, the party or person who actually caused the accident might not have the funds (or insurance coverage) to pay for legal damages.
This is when “third-party lawsuits” might offer surviving family members some financial relief. They are not a panacea; nor should they be viewed as an opportunity to sue someone without just cause. There are some specific conditions that must be met before a third-party lawsuit (or insurance claim) may be filed.
Is There a Genuine-Party Defendant Involved?
When Kentucky employers subscribe to “workers’ comp,” not only are they paying for certain obligations when their employees are hurt on-the-job, but also protection from civil lawsuits, even when they might be guilty of simple negligence. One of the few exceptions where a wrongful death claim or lawsuit is allowed is when surviving family members can prove gross negligence or willful intent (to injure) by the employer, or possibly by a fellow employee. The filing of any criminal charges against either after an investigation might be a good indicator.
The benefits paid by workers’ comp cover doctors visits, prescriptions, surgery, physical therapy, and other treatments needed for recovery. Also covered are payment of about two-thirds of the employee’s weekly wages for a finite period of time, and permanent disability benefits if there is impairment that results in partial or total disability. And though Kentucky law states that “survivor benefits” must be offered, the level of such coverage is left up to the individual company’s insurer so long as certain minimums are offered.
All of this is important because when it comes to any possible third-party lawsuits, surviving family members must first exhaust all possibilities available through their deceased family member’s workers’ comp insurance and any Social Security death benefits their relative could receive.
Here are some examples where third-party wrongful death lawsuits may be considered:
- If your family member worked in construction or in a warehouse and a third-party (such as a visitor, subcontractor, or vendor) created the circumstances which caused the accident that killed your loved one, they can be sued for damages.
- If your husband was operating machinery which was subsequently determined to be defective, inherently dangerous, or improperly maintained, the party responsible for this condition may be subject to an insurance claim or lawsuit.
- If your family member was killed by a driver while he was working as a delivery vehicle route driver, a claim can be filed with the driver’s insurance company and a lawsuit pursued if they refuse or delay payment or offer a low-ball amount.
- If your family member was working in a remote location for his/her employer and suffered an accident for which the remote property location owner was negligent, you have grounds for an insurance claim or wrongful death premises lawsuit.
- If a drunk driver kills a family member, it is possible to sue the bartender and or the owner of the establishment where the driver was drinking. But several conditions must be met in order for a wrongful death lawsuit to be successful, which a seasoned injury lawyer can share with you.
These are just a few examples of wrongful death third-party lawsuits.
What Damages Can Families Recover in a Third-Party Wrongful Death Lawsuit?
While workers’ compensation does provide some death benefits to surviving family members, they primarily compensate spouses for the deceased’s lost wages and funeral and burial expenses, they offer only very limited compensation for noneconomic losses such as loss of consortium and other tertiary expenses surrounding the care of the injured – later deceased – spouse.
When you file a wrongful death lawsuit, you have the right to seek damages for all economic and noneconomic losses. If it is filed in conjunction with workers’ comp, you are allowed to seek only damages not already paid by workers’ comp — the “donut hole” difference between what is paid by workers’ comp and the rightful full compensation amount. While only the legal representative of the deceased can file the lawsuit, damages can be recovered for surviving beneficiaries, including the spouse and children.
if your family has lost a loved one to an accident and you suspect others may have been involved, call Southeast Kentucky’s Billy Johnson Law Firm at 1-606-433-0682, or fill out this online form to arrange a free consultation and learn how we can help your family get to the bottom of this wrongful death. We may be able to identify others who had a hand in your beloved family member’s fatal accident.