Losing a loved one due to another party’s negligence or carelessness is a tragic and overwhelming experience. When a loved one unexpectedly dies, surviving family members not only have to deal with the intense emotional pain but also must deal with the financial consequences.
Families that lose the primary earner usually find themselves facing sudden financial hardship that can make their already unfortunate situation even more difficult. Families are often unsure of how to proceed if their loved one passes away due to wrongful death. Fortunately, the law in South Carolina allows surviving family members to seek justice and compensation in court for themselves and the deceased.
If you would like to file a wrongful death claim, you should contact the experienced Greenville wrongful death lawyers at Hernandez & Cabra today who will explain the options available and guide you through the process. Call our personal injury lawyers at 864-501-4384 to schedule your free consultation.
How is Wrongful Death Defined in South Carolina?
Wrongful death is defined under South Carolina law as a death that occurs when an individual’s wrongful act, neglect, or default leads to someone else’s death and the victim could have filed a personal injury lawsuit if they had lived.
It can therefore be helpful to think of a wrongful death lawsuit as a personal injury lawsuit whereby the injured person is no longer able to bring his/her case to court. So, someone else must step in and file the lawsuit on behalf of the decedent.
A wrongful death could be the result of many types of incidents, but it usually happens from:
- Car Accidents
- Medical Malpractice
- Motorcycle Accidents
- Defective Products
- Slip and Fall Accidents
- Truck Accidents
- Nursing Home Abuse
Who is Qualified to File a Wrongful Death Claim in South Carolina?
Under South Carolina law, a wrongful death claim must be brought by or in the name of the administrator or executor of the decedent’s estate. The executor or administrator is an individual or institution responsible for carrying out the terms of the decedent’s will or, if there’s no will, distributes the decedent’s property according to the state’s probate laws.
It is always important to understand that the executor or administrator is seeking compensation on behalf of only certain persons according to the statute. Regardless of who the administrator or executor of the decedent’s estate might be, a wrongful death claim in South Carolina can be brought on behalf of the following beneficiaries:
- Spouse of the deceased
- Child or children of the deceased
- Parent or parents of the deceased (if there’s no surviving child or spouse)
- Heirs of the deceased (if there’s no surviving child, spouse, or parent)
The wrongful death law in South Carolina provides for the distribution of any financial reward among surviving family members. Children and spouses of the deceased usually receive a greater share compared to other family members.
What Types of Damages Are Recoverable?
If a wrongful death claim is successful, the court orders the defendant to pay damages, which are essentially the plaintiff’s claimed losses. The damages are paid to the decedent’s survivors as listed above. In South Carolina, damages are usually awarded for a variety of losses, which include but are not limited to:
- Funeral Expenses: Funerals cost thousands of dollars and this burden should not fall on the shoulders of the family where a wrongful death has occurred.
- Medical Expenses: If the wrongful death was the result of an accident that caused serious injuries, substantial medical bills may accrue from the time of the accident to the time of death.
- Loss of Expected Earnings: It includes the benefits and wages that the deceased family member would have earned for his/her family were it not for their untimely death.
- Loss of Consortium: It refers to the companionship that the decedent’s children or spouse have been denied as a result of the wrongful death.
To pursue these and other types of damages following a wrongful death in Greenville, South Carolina, you should get in touch with the experienced wrongful death attorneys at Hernandez & Cabra today. We will help you assess your case and determine what to do next so that you and your family can get through this difficult period in your lives.
Can the Surviving Family File for Punitive Damages?
Yes. However, it is important to understand that punitive damages are rarely ever awarded in South Carolina. Unlike other types of damages, punitive damages aren’t intended to compensate the decedent’s family or estate for losses resulting from the death. Rather, they are intended to punish wrongdoers and discourage others from engaging in similar behavior in the future.
To recover punitive damages in South Carolina, the law provides that the plaintiff has to present clear and convincing evidence that the defendant’s actions that caused the death were willful, wanton, or reckless. If proven, punitive damages are limited to the greater of 3 times the actual damages or $500,000.
How is Negligence Proven in a Wrongful Death Case?
Wrongful death cases are typically resolved through settlements that are intended to cover the past, current, and future expenses incurred by the decedent’s family. If the at-fault party’s insurance company fails to make a satisfactory offer for compensation, a lawsuit may be filed.
A wrongful death lawsuit is aimed at proving that the negligent party was actually at fault for the person’s death. It is usually accomplished by proving the following 4 elements, which are central to a negligence claim:
Duty of Care
You (the plaintiff) are required to show the court that the defendant owed the decedent a duty of care to conduct themselves in a reasonable and safe manner.
Breach of Duty of Care
You must also demonstrate how the defendant violated or breached this duty of care by failing to conduct themselves in a safe and reasonable manner. It could be through a specific action or inaction when another reasonable person facing similar circumstances would have acted appropriately.
You must also prove that the death resulted from the defendant’s breach of duty of care and not any other cause.
The defendant’s breach of duty of care directly resulted in quantifiable damages, which include but aren’t limited to:
- Funeral and burial costs
- Medical expenses
- Loss of potential earnings
- Loss of income
- The victim’s pain and suffering before death
- A loss of guidance, protection, and inheritance
Proving the 4 points of negligence above through a wrongful death in court requires the production of strong and convincing evidence. Some evidence may even require expert witness testimony. Our experienced Greenville wrongful death lawyers at Hernandez & Cabra will help you build your case around the facts and evidence presented.
How Do You Start a Wrongful Death Claim in South Carolina?
If your loved one loses his/her life due to another party’s negligence, the executor or administrator of his/her estate that’s either named in the will or is appointed by the state if there’s no will file start a claim.
You should start by consulting with an experienced wrongful death lawyer such as those at Hernandez & Cabra who will:
- Meet with all interested family members to learn the circumstances of the loss and explain what we can do to help.
- Gather as much evidence as we can, including accident/police reports, witness statements, as well as the decedent’s medical records and bills.
- Identify the potentially responsible parties and sources of compensation.
- Calculate the damages and develop a legal strategy based on the circumstances and facts of your loved one’s death.
- Attempt to negotiate a fair settlement with the at-fault party’s insurance company that addresses the full range of covered damages.
- If a fair settlement is not offered, file a wrongful death case against the at-fault party via their insurance provider.
- Construct a strong case built on all the available evidence in the case as well as the input of expert witnesses as applicable.
- Skillfully advocate for justice and rightful compensation in the decedent’s name.
Your initial meeting with our experienced Greenville wrongful death lawyers at Hernandez & Cabra is completely free of charge. Payment for any work done on claims pursued on your behalf is contingent on recovering compensation for you. Simply put, you don’t have to pay us anything if we fail to secure a settlement or judgment for you.
What is the Statute of Limitations for Filing a Wrongful Death Claim in South Carolina?
In South Carolina, the administrator or executor of the decedent’s estate is required to file a wrongful death claim within 3 years starting from the date of death. If the death occurred at a county or state medical facility, then the wrongful death claim must be filed within 2 years from the date of death.
What is the Difference Between a Wrongful Death Claim and an Estate Claim?
A wrongful death lawsuit can consist of two different claims:
- A Wrongful Death Claim
- A Survival Action (Estate Claim)
A wrongful death claim is a civil lawsuit against the alleged negligent party that can be held liable for their actions or inaction that led to the person’s death. In such cases, the law in South Carolina specifies that the administrator or executor of the decedent’s estate will bring the wrongful death claim.
An estate claim, which is also known as a survival action in South Carolina allows for the decedent’s estate to file a lawsuit for the injuries or damages the deceased suffered immediately prior to passing away. Under an estate claim, the surviving family is essentially filing a lawsuit for damages the deceased would have pursued if they had lived.
Estate claims are usually filed at the same time as wrongful death claims, but these 2 courses of action have 3 key differences that are outlined below:
Circumstances When the Action Can Be Brought
Estate claims can only be brought if the decedent survived for a period of time after the negligent act that caused the death. A wrongful death claim, on the other hand, can be brought even if the deceased died instantly.
Purpose of the Action
Estate claims are typically brought to seek damages incurred by the decedent between the negligent act and the person’s death. A wrongful death claim, on the other hand, is brought to compensate the surviving loved ones for losses suffered as a result of the death.
Damages That Might Be Available
Wrongful death claims typically allow surviving family members to recover compensation for:
- Medical bills incurred by the deceased
- The mental anguish of the family
- Pain and suffering of the family
- Lost benefits of the deceased
- Lost wages, including future earnings
- Funeral and burial expenses
- Loss of companionship, consortium, and support.
Estate claims typically seek compensation for the following:
- The emotional distress that the deceased suffered prior to their death
- Medical expenses that the deceased incurred prior to their death
- Funeral expenses if they aren’t already covered in the wrongful death claim.
Need an Experienced Greenville Wrongful Death Lawyer?
If you have lost a loved one through the wrongdoing or negligence of another party, we understand that there’s no amount of money that can ever be enough to compensate you for your loss, but a wrongful death claim can help ease the financial strain associated with the loss.
At Hernandez & Cabra in Greenville, South Carolina, we are experienced and compassionate advocates for wrongful death survivors. We always strive to give all our cases the personal attention they deserve including yours to ensure that you receive maximum compensation.
Pursuing a wrongful death claim in South Carolina can be a long and challenging process, but our experienced lawyers in Greenville are ready to assist you with this process from start to finish. Call us today at 864-501-4384 to schedule your free, no-obligation consultation with an experienced lawyer.