Alaska Wrongful Death Attorney

Legal Rights After Losing a Loved One

Video Transcript:

Mark Choate:

A death can result in a real loss to the family and a benefit to the person that killed him.

Rob Rosenthal:

If you've lost a loved one and you think you might have a wrongful death case, how do you find out? What do you need to know and how do you get help? We're gonna find out the answer to those questions right now, because that's what we're going to ask on today's episode of Ask the Lawyer. Hi again everybody, I'm Rob Rosenthal with AskTheLawyers.com, and my guest today is Alaska attorney Mark Choate. I wanna tell you right off the top, if you wanna ask Mark questions of your own, it's easy. Go to Ask TheLawyers.com, click the button at the top that says, Ask a Lawyer, and you can ask right there, or you can call the number on the screen when we talk to Mark. Mark, it's good to see you again, thank you for helping us out.

Mark Choate:

Great seeing you Rob. 

Rob Rosenthal:

So let's kind of start at the beginning. Wrongful death, it sounds pretty self-explanatory, but tell us from the law's point of view, what constitutes a wrongful death? 

Mark Choate:

A wrongful death is generally when someone's death is caused because somebody else has done something which breached the standard of care. For example, the driver that runs through a red light, the doctor who doesn't follow accepted procedures and causes someone's death, sometimes even intentional acts, if someone murders somebody, all of those can have a civil component, which is a wrongful death claim, which allows the estate of the family and often the individual family members if there are dependents, to bring a claim for the loss of that person's life. 

Rob Rosenthal:

And what's the difference then as far as from your standpoint of wrongful death case as opposed to say catastrophic injury cases, that the victim is no longer there to represent?

Mark Choate:

No, you basically represent the victim through the estate. So in a wrongful death, when we get a wrongful death death case comes in and we decide we're gonna pursue it, one of the first things we have to do normally, because people don't often set up a estates, is we set up an estate, we file what's called a probate action, we have a generally a family member of the spouse or someone close, become the personal representative, and then that personal representative has the authority from the court to pursue all remedies available for that death, and those remedies generally kind of fall into two categories. The first category is the pre-death claims, because sometimes you might be injured and it might take some seconds or minutes or hours or days or months until you die, and you have a what's called a survival claim for that time period of loss, which is all the suffering the person had. And then you have the wrongful death claim, which is once the person dies, the claims that can be brought under your state's law, and every state approaches it differently, but generally speaking, if you have statutory heirs or dependents, meaning people that you supported relied upon you or would rely upon you, there are claims that they can bring through the estate for the losses of your support, care. There also can be consortium claims by family members, and every state does it a little differently, but there's a variety of claims, and then you have basically the claims for the loss to the estate, because the person no longer is able to earn money, and those claims are weirdly...Can be surprisingly small. So what you'll do is you'll take someone's expected earnings over their life, you'll reduce that by their expected consumption, the money that they would have, that spent to support themselves, and then you take that number and you reduce it to what's called present value. So if we invested a certain amount today, how would that... What would that number be at the end of their life? And those cases are often based on education, the more education you have, or the more education we can claim and provide that would support that, say This person was likely to finish high school, they were likely to get some college, they were likely to finish college, they're likely to get some post-college work, those will have a direct impact on the value of that claim. 

Rob Rosenthal:

What if the heirs are minors, does that complicate things at all? 

Mark Choate:

No, if the heirs are minors, you would always have a personal representative or you often have a guardian ad litem, somebody that you will get or you'll have the court appoint for the minors to represent their injury, to make sure that they are protected. Sometimes when you have, you know, multiple claimants, you have multiple kids, some courts will require a guardian for each child, but yes, the loss is not only the loss of earnings or income, but it also is the loss of guidance, the loss of being there when a daughter is married or a son gets to go and gets ready to go to the military, what's it like not to have your father and mother there? so minors have claims and often people don't realize it, and all states have what are called statutes of limitation, which are a certain period of time in which you have to bring that claim. Frequently minority will extend that time was called a legal word called tolling for a period of time, but it's always best to get to a competent lawyer sooner than later, to make sure that you don't miss a statute of limitations, 'cause if you do, you're flat out of luck, the law will not care about your loss, they will enforce that statute of limitations.

Rob Rosenthal:

You kind of referenced this a little bit ago, Mark, I would assume, and maybe you've had some experiences that sometimes what starts out as a catastrophic injury case and maybe you've been hired to represent somebody could turn into a wrongful death case. Is that... Do you have to kinda change direction on that, or how does that handle?

Mark Choate:

No, you don't really have to do much different. The biggest issues in those cases will be that you'll no longer have future care costs, for example, it's one of the terrible things about many states' laws, including Alaska where I primarily practice, is that if someone dies, it cuts off a number of sorts of claims, and if you have a state where there are caps or ceilings on the kinds of damages you can get a death can result in a real loss to the family and a benefit to the person that killed them. So for example, in Alaska, if you're injured and we have caps on general damages, meaning pain and suffering, disfigurement, loss of enjoyment of life, you can have a scar on your face, and our caps are a million dollars, you can get up to a million dollars, but if you kill somebody here, the cap, our Supreme Court has found is limited to $400,000, which is awful, because there's actually an economic benefit for killing people, and I planned to challenge that in court fairly soon, because I think those caps send a terrible message to everybody and they undervalue the loss for the family when they lose their loved one because of somebody else's bad conduct.

Rob Rosenthal:

It already just from the little short conversation we've had Mark, it's clear to me it's complicated, and it's really important in a wrongful death case to have an attorney who understands all the ins and outs of this sort of thing. 

Mark Choate:

It is. Often either the first thing that will happen if there is an injury like this is often the insurance companies may contact the family directly and say, Hey, we'll send you a check, and sometimes those checks can be pretty small and the family doesn't know what the value is, or they don't know what levels of insurance may be available or what kinds of claims can be made. They could really lose not only a lot of money, but sort of the support... A value, an economic value for the loss of the individual. And it's always hard to set a dollar value on anything, and especially loss of life, especially perhaps a loss of a child's life, but it's all our courts allow, all our system allows is to provide a dollar value for that. It's the responsibility of a lawyer to do that and to make sure that the family gets some compensation in terms of dollars, which will be there for education, will be there to provide as a wife or a husband may age, will make up in a very small, tiny way, the enormity of the loss for the family.

Rob Rosenthal:

It's always interesting whenever we talk, Mark, thank you for making some time to answer our questions.

Mark Choate:

You're welcome Rob, it's great to see you again.

Rob Rosenthal:

And that's gonna do it for this episode of Ask the Lawyer. And my guest has been Alaska attorney Mark Choate. Want to remind you again, if you'd like to ask Mark questions of your own, it's easy. Go to AskTheLawyers.com, click the button at the top of the page that says Ask a Lawyer and it'll walk you right through the very simple process. Thanks for watching, I'm Rob Rosenthal with Ask the Lawyers.

Disclaimer: This video is for informational purposes only. In some states, this video may be deemed Attorney Advertising. The choice of lawyer is an important decision that should not be based solely on advertisements.