Wrongful Death Suits

A wrongful death suit is one of the most difficult civil cases to process because of all the emotional issues of grief and shock that arise from the sudden loss of a loved one. Our firm recommends that all those who are affected get grief counseling to help adjust to this profound loss. Call our office and we can recommend various grief therapists in the Twin Cities area.

Special Requirements

Another element that makes this a more challenging case is the fact that in a wrongful death Minnesota Statute Sec. 573.02, (Action for Death by Wrongful Act) must be followed and which provides the following basic elements for a claim:

1. A person dies;

2. The person's death was caused by the wrongful act or omission of any person or corporation;

3. The trustee appointed to pursue the action may recover for the pecuniary loss to the surviving spouse and next of kin resulting from the death.

4. The court then determines the proportionate pecuniary loss of the next of kin entitled to the recovery and orders distribution accordingly.

Wrongful Death Procedure: 

Appointment of Trustee: A district court judge must appoint a trustee who represents all the next of kin and will sue out thcase against the wrongdoer. The following steps must be followed:

1.   All potential next of kin are identified and contacted and they usually agree on the person to serve as trustee. The Trustee should be a person the jury and the next of kin can trust to properly invest and distribute any recovery in a fair and impartial manner for all the next of kin.

2.   Pursuant to Minnesota Rules of Civil Procedure 144, one of the next of kin must have a petition prepared seeking approval from the district court to have the agreed upon person appointed trustee.

3.   All heirs should receive notice of the Petition and the hearing date. If there is no dispute as to the appointment of the trustee, the heirs will sign a Waiver of Notice for hearing and bond and there may be no need to have a hearing. The decision whether to have a hearing is within the discretion of the Court.

4.   The Trustee must sign an oath to faithfully perform the duties of trustee and represent all of the next of kin.

5.   The petition which is signed by the petitioning heir and the petitioning trustee, is forwarded to the court along with a proposed order appointing a trustee.

Lawsuit Brought By Trustee:  The appointed Trustee representing all the next of kin, starts the lawsuit against the person at fault.

1.   First the Trustee appoints an attorney to represent her/him.

2.   The attorney begins the case on behalf of the Trustee against the at fault party.

3.   The Trustee represents the spouse and next of kin who have a claims for pecuniary loss by loss of blood relatives. This includes all the decedent’s children, parents, parent’s issue (sibling of the decedent), grandparents and descendants of grandparents. Parents may recover for the wrongful death of a child even if the child is emancipated and/or married. If the surviving spouse remarries during the case, it is not relevant to their recovery.

4.   If the at fault person has died, the Trustee sues their estate.

5.   If an unborn child was capable of living outside the mother’s womb, a statutory cause of action for wrongful death exists.

6.   Where an employee-employer relationship exists, an action for wrongful death is limited to an action under the Worker’s Compensation Act.

Time Limitations:

The time within which to bring a claim for wrongful death is 3 years from the death and no longer than 6 years from the incident. However, if a possible dram shop claim exists, the time limit in which to bring a claim is two years for the date of the incident. A notice must be sent to the bar within 240 days of hiring the attorney.

1.   If there is a settlement of the case, the Trustee will bring the settlement and the amounts to be paid to each next of kin to the Judge who must approve it.  (MRCP 114). The court hearing the petition for disbursement shall approve, modify, or disapprove the proposed disposition and shall specify the persons to whom the proceeds are to be paid.

2.   The petition for distribution will be heard upon notice, given in form and manner and upon such persons as may be determined by the court, unless waived by all next of kin or the court.

3.   The court by order will direct distribution of the money to the persons entitled thereto by law pursuant to JIG 91.75

Pecuniary Damages:

In order to determine how the proceeds of a recovery will be disbursed, the Judge will either present the following evaluation of pecuniary damages to a jury for their decision or if there is no jury, use the same evaluation for his/her own decision:  Pecuniary damages includes both economic loss and non-economic damages.

Economic Damages JIGS:

Economic damages are a money value of damages:
Civil Jury Instructions Guide (JIGS) 91.75 describes the measure of damage in a Wrongful Death.

“When you consider damages for (claimant)(s), determine an amount of money that will fairly and adequately compensate (claimant)(s) for the losses (he) (she) (they) suffered as the result of this death.

You should consider what (name of deceased) would have provided to the (claimant)(s) if (he) (she) (they) had lived.”

JIGS Factors To Consider For Economic Damages:

1. (His) (Her) contributions in the past

2. (His) (Her) life expectancy at the time of (his) (her) death

3. (His) (Her) health, age, habits, talents, and success

4. (His) (Her) occupation

5. (His) (Her) past earnings

6. (His) (Her) likely future earning capacity and prospects of bettering (himself) (herself) had (he) (she) lived

7. (His) (Her) personal living expenses (cost of supporting the child)

8. (His) (Her) legal obligation to support the (surviving spouse) (next of kin) and the likelihood that (he) (she) would have fulfilled that obligation

9. All reasonable expenses incurred for a funeral and burial (etc.), and all reasonable expenses for support due to (his) (her) last sickness, including necessary medical and hospital expenses incurred after and as a result of the injuries causing death

10. [The probability of (name of decedent)'s paying the debt owed by to ]

11. The counsel, guidance, and aid (he) (she) would have given (claimant)(s)

12. [The advice, comfort, assistance, companionship, and protection that (name of decedent would have given if (he) (she) had lived].

Pecuniary Non-Economic Damages:

Claimants should also be compensated for loss of advice, comfort, assistance, and protection which the jury might find to be of pecuniary value and which the survivor could reasonably have expected if the decedent had lived. Sometimes loss of consortium characterizes loss of comfort and society as damage having a pecuniary value. The term “society” includes a broad range of benefits each family member receives from the others continued existence, including love, affection, care, attention, companionship, comfort and protection.

Evidence Used To Determine Non-Economic Damages:

The evidence used to prove damages is shown in the testimony of family, friends, and persons acquainted with decedent. Depending on the facts of each case, sometimes it is useful to hire a professional to assess the non-economic damages by interviewing surviving family member/next of kin to determine the loss of counsel, guidance, aid, advice comfort, assistance and protection following the death of a loved one requires an exceedingly skilled, sensitive, and probing evaluation. A good clinical assessment of these damages by an expert can avoid long protracted litigation between the claimants.

Civil Jury Instructions for Non-Economic Damages:

Civil jury instruction guide 91.85, given where appropriate, includes the following factors:

Lost Time Together

1.   Decide the length of time those related might be expected to survive together. You should compare the life expectancy of (name of decedent) with the life expectancy of each claimant.

2.   Take into account only the amount of time the two being compared would be expected to survive together.

3.   Base your money damages for each claimant on the shorter life expectancy of the two being compared.

Items to exclude: Do not include amounts for

1. [Punishing the defendant]

2. [Grief or emotional distress of the surviving spouse and the next of kin], or

3. [For the pain and suffering of before (his) (her) death].

Other Factors to exclude:

Do not be influenced by the fact that:

1.   [The (surviving spouse) (next of kin) (may have received) (may get) money or other property from (name)'s estate], or

2.   [The (surviving spouse) (next of kin) (may collect) (has collected) insurance or     workers'compensation benefits because of (name)'s death], or

3.   [The surviving spouse has remarried], or

4.   [The minor children have been emancipated], or

5.   [There is no legal obligation to support the next of kin].

You must determine the total amount of money that will fairly and adequately compensate the (claimant)(s) for the damages suffered as the result of this death.

If the case does not go before a jury, the Judge will divide the damages among the (claimants).  However, the Judge will look to the Trustee for guidance.

End Of The Case:

Upon filing of a receipt with the court from each next of kin who received a recovery amount, the trustee shall be discharged.

Dram Shop Suits: (Claims against a bar that illegally sold alcohol to the person at fault)

1. The difference between a wrongful death claim and a dram shop claim begins with who can bring the claim. In a pure wrongful death claim, for instance against the drunk driver, the rules require an appointment of a trustee to represent all the next of kin and bring the suit.

2. In a dram shop claim, each individual brings the claim. Pursuant to Minnesota Statute 340A.801 “any spouse, child, parent, guardian, employer or other persons injured in person, property or means of support, or who incurs other pecuniary loss by an intoxicated person” has a cause of action in the person’s own name.