When someone you love dies, there is so much going on in your heart and mind that it can be very difficult to sort through the challenges and nuances of an Indiana wrongful death claim. To begin with, you need to know if you have a wrongful death claim. Wrongful death means that the person’s death could have been prevented and was caused by someone’s negligence. This can be like a personal injury claim, where negligence caused an accident and injury, but the injury resulted in death.
In Indiana, there are three statutes you may pursue a wrongful death claim: 1) The General Wrongful Death Act, 2) The Adult Wrongful Death Act and 3) The Child Wrongful Death Act. These three statutes create independent mutually exclusive actions. You must know which statute applies to your wrongful death claim.
Once you’ve determined that there is grounds for a wrongful death claim, you need to find out if you are the person who is entitled to file such a claim or if it is someone else. You also need information on what the civil caps on damages are in your case, what laws apply to your claim, and what kinds of damages you can recover and which of the three wrongful death acts apply. We’ll discuss some of these details and challenges of wrongful death claims in Indiana, here, and you can get more information by scheduling a free consultation with Rowe & Hamilton.
Are You the One Who is Legally Allowed to File a Wrongful Death Claim?
An Indiana wrongful death claim under the Adult Wrongful Death Act and the General Wrongful Death Act can only be pursued by the legal representative of the estate of the victim. This person is known as the executor or executrix, the special administrator, or the personal representative. He or she will be appointed as such by the court, and it will usually be the next of kin (spouse, parent, sibling, adult child, etc.) but not always. If the decedent had a will, then the will set forth the executor or executrix of the estate. If you are the estate representative, then you are the one who is legally allowed to file the wrongful death claim.
However, this does not mean that any and all compensation goes to you. It is important to understand that you are not filing the lawsuit for yourself, but on behalf of the estate, and the damages that are recovered will be according to the three Indiana Wrongful Death Statutes set forth above. A spouse, child, parent or dependent next of kin are the only surviving relatives entitled to recover under the restrictions set forth in these statutes. This is why it is important to consult with an attorney concerning any rights of recovery you may have in a wrongful death claim.
Things are a bit different if the victim is a minor child. In such cases, the wrongful death claim can be pursued by the parents or the legal guardian of the child.
What Are the Damages, Caps and Limitations on Damages in a Wrongful Death Claim?
Under the General Wrongful Death Act, the spouse, dependent children or dependent next of kin have the right of recovery of reasonable medical, hospital, funeral and burial expenses as well as the costs of administration of the estate including attorney fees. They can also recover loss of earnings, household services and material benefits, loss of consortium, loss of training and guidance, and loss of love, care and affection. There are no caps to these damages, however dependency must be proved to recover these damages. Punitive damages are not allowed.
Under the Adult Wrongful Death Statute an unmarried person who is an adult and not a child and has no dependents, the personal representative of the estate can maintain a wrongful death action and get reasonable hospital, medical, funeral and burial expenses and loss of the adult person’s love and companionship. The loss of love and companionship is capped at $300,000. A non-dependent parent or child who claims loss of love and companionship must prove that they had a genuine, substantial and ongoing relationship with the adult decedent. The Adult Wrongful Death Act prohibits punitive damages and does not allow recovery for a person’s grief.
If the case involves a medical malpractice, the cap of $1,250,000 may apply and if it the defendant is a government entity, the cap of $700,000 can apply.
Under the Child Wrongful Death Act, the plaintiff can recover damages for loss of the child’s services, loss of love and companionship, reasonable psychological and psychiatric counseling expenses due to the death of the child, medical, funeral and burial expenses, uninsured debts of the child, and costs of the administration of the estate including reasonable attorney fees. Damages can only be awarded up until the time the child would have reached 20 years of age or 23 if in college or the time of the last surviving parent’s death, whichever occurs first. A grandparent under certain circumstance may be entitled to recover damages, but if the parent or grandparent abandoned the child while he or she was alive, they cannot recover any damages. There are no caps to damages other than the time limitations set forth here. Punitive damages are not allowed under the Child Wrongful Death Statute.
Seek a Free Wrongful Death Claim Consultation with Rowe & Hamilton
The compassionate wrongful death lawyers in Indianapolis at Rowe & Hamilton are ready to provide you with a free consultation to learn more about the merits and value of your wrongful death claim. You are under no obligation to hire us, and the consultation is completely free, so you have nothing to lose by learning as much as you can about your case. If you do decide to pursue your claim with our attorneys, there will be no upfront fees, and we will set up a contingency fee arrangement, so that we only get paid if you recover compensation.