Wrongful death and survival action are civil claims that can be made in Missouri after the loss of a loved one. It is important that you proceed properly in the event of a wrongful death or survival action claim. The best course of action is to communicate openly with family members and find a lawyer that you can trust.
Across the United States, wrongful death is civil action litigation that occurs when someone dies at the fault of another. However, each state legislates this slightly differently. In Missouri, wrongful death occurs from “any act, conduct, occurrence, transaction, or circumstance which, if death had not ensued, would have entitled such person to recover damages in respect thereof”.
For example, someone could injure their head at the fault of another and then die because of it. Now, that person’s kin is entitled to receive damages related to the head injury and the fallout from the death.
Many things could warrant wrongful death.
The three (3) most common causes are auto accidents, medical malpractice, and product liability:
Manslaughter comes in two main variations, voluntary and involuntary. It is never premeditated but is always inexcusable and unjustifiable. On the other hand, murder is premeditated and thus typically leads to worse sentences than manslaughter charges. Both of these are criminal charges, and a criminal case must be brought on by the state itself on behalf of “the people”. The goal of this type of case is to punish the wrongdoer and they usually end with things like jail time and/or community service.
However, the punishment of the wrongdoer does little to compensate for the loss of a loved one. Thus, wrongful death was born. Wrongful death allows for families to sue in civil court, and recoup for the damages of losing a loved one. Unlike manslaughter, this is not meant to punish the wrongdoer, but rather to compensate the family for their loss. You cannot sue for manslaughter, but if manslaughter exists, you can likely sue for wrongful death.
Passed in 1855 to protect those suffering from the loss of a loved one, the Missouri Wrongful Death Law allows family members of the wrongfully deceased to recoup emotional, physical, and financial losses in the form of a lump sum.
One of the biggest questions in a wrongful death claim is who will recover the damages. To start, only family members can file a wrongful death claim.
The family is then divided into two (2) classes based on proximity to the victim:
Filing a wrongful death claim can be done without the permission of others in the family. Occasionally, there will be a dispute among family members over who should file the lawsuit. Because class one members (spouse, children, parents) are deemed to be emotionally closer to the victim than class two members (brothers, sisters), it is always smart to have a class one member file if possible.
Sometimes, lack of communication and family disputes lead to more than one lawsuit being filed. The courts will typically only allow one case to exist for a deceased person, and thus end up consolidating multiple cases into one. Any rewarded damages will be split among loved ones as they decide to split it. If no decision can be made among the group, then the judge and jury will divide the rewarded money.
It is important to know how this type of legislation works in your area so that you can receive your full entitled amount. Check out our other wrongful death pages to ensure you are well versed in this topic and can find a lawyer right for you.
A statute of limitations is a law that sets the parameters for how long a party has to begin legal action. This time frame can vary greatly depending on the type of alleged offense. Minor infractions tend to have a shorter statute of limitations than more serious infractions. Domestically, the statute for personal injury suits is generally two years, but crimes like arson and art theft generally have statutes greater than five years. Internationally, there are a few offenses that have no statute of limitations. These are major offenses and include things like crimes against humanity, war crimes, and genocide.
International and federal governments are not the only ones that must implement statutes of limitations. States do this too, but because they do it independent of each other, the same offense can have a different statute of limitations in different parts of the country. This can make finding your state's statute of limitations tricky.
The statute of limitations for most wrongful death cases in Missouri is three years. There are some exceptions to this like the discovery rule. This applies to cases in which the cause of death is not immediately known. In this case, the three years start on the date of which a reasonable person would know the cause of death.
In the early 19th century, there was no common law for wrongful death. If your loved one had died before this time, there was no way for you to recoup damages in civil court through wrongful death. In 1846, Parliament passed Lord Campbell’s Act, which created a cause of action for wrongful death. 9 years later, Missouri passed a similar law stating “Whenever the death of a person shall be caused by a wrongful act, neglect or default of another, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect”. This made wrongful death cases possible in Missouri.
Since the initial passing, there have been 23 revisions and additions made to the law. Most of these additions entailed who could recover and what they could recover for. For example, in 1978 a revision was made to allow the parents of an unmarried adult to recover damages, in the case that they left no surviving minor children. All 23 of these revisions came during the 20th century, the earliest of these having passed in 1909 and the latest having passed in 1992.
When a loved one dies happens, the family often wonders where the leftover possessions go. In America, 59% of adults do not have a will, which does not help this phenomenon. As you look at older demographics, this percentage gets better, but not great. Between the ages of 53 and 71, 40% of Americans do not have a will.
If not for state law, this would make for a large mess. In Missouri, if a loved one dies without a will, the surviving spouse is entitled to ½ of the estate. The other ½ is distributed evenly among the children. As a bonus, if the spouse is the biological parent of all surviving children, the spouse gets the first $20,000 from the estate. Contrarily, if only one of these two parties exists, 100% goes to that party. These stipulations remain the same under most causes of death, including those for wrongful death.
A survival action is a claim that a loved one can file in conjunction with wrongful death. It is always recommended that a survival action claim be filed with wrongful death because it is the only claim that can recover punitive damages in this type of case. Survival action covers all damages occurring between the time of injury and death such as pain and suffering, loss of income, and medical expenses. Punitive damages are awarded to punish the defendant.
In Missouri, the statute of limitations for survival action is the same as wrongful death, generally three years.
The purpose of survival actions is to bridge the gap between injury and death, and the money lost during that time period. Many deaths do not occur at the scene of the incident and force the victim to suffer until they pass. Survival action allows loved ones to sue for this time of suffrage, where wages were lost and hospital bills may have mounted. This allows wrongful death cases to come full circle and allows parties to collect damages for which they are rightfully owed.
The first major difference between survival action and wrongful death is who can file the claim. In a survival action, the claim must be filed by a representative of the estate. In a wrongful death claim, it must be brought on by the deceased spouse, parents, or children.
The damages able to be recouped are different as well. A survival action claim covers losses that the victim could have sued for had they lived, and a wrongful death claim compensates the family for direct monetary losses. These two claims can be brought in together, separately, or not at all. Regardless, it is advised to bring them into a suit together so that full damages can be rewarded.
These personal injury damages can only be accurately assessed after the victim has passed away. Until that time, damages may continue to accrue.
This is not a complete list of damages that can be found, but it contains the ones most commonly found almond wrongful death claims:
These personal injury damages are rewarded for the time that the deceased was injured but not yet dead.
This is not a complete list of damages that can be found, but it contains the ones most commonly found among survival action claims:
In a civil lawsuit, a claim is what is initially filed. In essence, you are claiming that something happened and that you should be compensated for it. This claim can be settled mutually between two parties, or it can remain unsettled. If it remains unsettled, the claim will go to court and thus become a lawsuit. By definition, a lawsuit is “a claim or dispute brought to the court of law for adjudication”. The settlement of a claim or lawsuit will be split by the heirs of the deceased. If no agreement can be reached between the heirs, then the court will step in to decide how the money is divided.
If negligence can be established, then Missouri homeowners insurance will cover wrongful death on the insured owner's premises. Typically this insurance will cover some but not all of the costs. If you can prove negligence on more than one party, you may be able to use insurance from multiple parties.
For example, if a product was an integral part of the death, you may be able to use the product manufacturers’ insurance to your advantage. However, insurance policies often have maximum payouts and you may be reaching into your own pockets to cover the rest.
In personal injury cases, damage caps are statutes that limit how much can be awarded to the injured party. These limits exist to cap how much a service provider will have to pay. Each state sets its own limits.
In 2015, Missouri passed SB 239, a damage cap law that states a plaintiff shall not recover more than $400,000 in non-economic damages for personal injury cases, no more than $700,000 in non-economic damages for catastrophic injuries, and no more than $700,000 in non-economic damages for death. These limitations are increasing by 1.7% each year. This is not the same in every state, as in Illinois where there are no caps on damages and it is left to the judge and jury to decide the final amount.
Non-economic damages include pain, emotional anguish, humiliation, reputational damages, loss of interest in activities, or worsening of prior injuries.
Economic damages include things like medical bills, lost income, property damage, loss of earning capacity, vocational rehabilitation, household services, and out-of-pocket costs. No states have damage caps on economic damages.
The case must be filed within three years of the date of death. If it is not filed within this time, the case is likely to be dismissed.
There are three (3) basic things you need to prove:
Most wrongful death cases that aren’t quickly settled take anywhere between 1 and 2 years to complete. Make sure you have all the necessary paperwork ready to move as quickly as possible. To start this process, you must file a petition and serve it to the parties being sued. After this is completed, you will enter the discovery phase. In discovery, parties take depositions, exchange requests for information, and subpoena witnesses. The final phase is assigning the trial to court. Once a verdict or settlement is reached, parties can choose to appeal or accept the decision. If it is appealed, it will be sent to the appellate court. Most decisions here are final, but there is a chance it gets sent from the appellate court to a Supreme Court.
In many situations, it is best to have the advice of an expert. You wouldn’t want to start most medicines without consulting a doctor first, and you wouldn’t want to start most lawsuits without the legal advice of a lawyer. In addition to peace of mind, lawyers can help you achieve the maximum financial potential out of your situation. The guidance and support lawyers can provide will help you through many legal situations, and wrongful death is no exception. If you have any questions or concerns, contact a Missouri wrongful death lawyer.
“537.080.” Missouri Revisor of Statutes – Revised Statutes of Missouri, RSMo, Missouri Law, MO Law, Joint Committee on Legislative Research, revisor.mo.gov/main/OneSection.aspx?section=537.080.
“Missouri Wrongful Death Statute.” Washington University Open Scholarship, openscholarship.wustl.edu/law_lawreview/vol1963/iss1/6/.
“Road Safety Facts.” Association for Safe International Road Travel, 19 Apr. 2021, www.asirt.org/safe-travel/road-safety-facts/.
SB239 – Creates a Statutory Cause of Action for Damages against Health Care Providers, www.senate.mo.gov/15info/BTS_Web/Bill.aspx?SessionType=R&BillID=1173008.
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