Texas Wrongful Death Statute
Texas’ wrongful death law is found in Texas Statutes Sections 71.001-71.012.
Section 71.002 states that a party is liable for damages arising from an injury that causes another individual’s death if the injury was caused by the party’s wrongful act, neglect, carelessness, unskillfulness, or default.
New Mexico Wrongful Death Statute
New Mexico’s wrongful death law is found in New Mexico Statutes Sections 41-2-1 through 41-2-4.
Section 41-2-1 states that whenever the death of a person is caused by the wrongful act, neglect, default, or felonious conduct of another, and that act, neglect, default, or offense would have led to a personal injury claim had death not occurred, then the at-fault party is liable for damages associated with the death.
Are You Thinking About a Wrongful Death Suit?
When people consider legal action after a death, they often have a lot of questions. This is to be expected, and some common things to ask regarding fatal accident claims include:
- Who Can File a Wrongful Death Lawsuit? Your state’s law defines who can file a wrongful death suit. In New Mexico, the personal representative of your relative’s estate can file the claim. In Texas, a surviving spouse, child, or parent of the deceased individual can file. However, if none of the relatives file in three calendar months, then the administrator of the estate in Texas can file.
- Who Are Wrongful Death Beneficiaries? The beneficiaries are those who can receive all or part of the wrongful death compensation, if a settlement or verdict is won. In New Mexico, the state’s Probate Code determines who can receive compensation. The order of who receives compensation is a surviving spouse and child. If your loved one did not leave behind a spouse or child, then their parents receive the compensation. If there are no surviving parents, then their siblings can receive compensation. In Texas, the compensation is divided among the surviving spouse, children, and parents proportional to their loss.
- What Is a Survival Action? Wrongful death and survival actions are not the same thing. In Texas, if your loved one had a personal injury claim against the at-fault party but passed away before they could see the claim through, then the claim may survive their death. This personal injury claim can be continued by your loved one’s estate, legal representative, or heirs and can move forward as if your relative was still alive. New Mexico law does not include survival claims.
Common Fatal Accidents
Whatever situation you and your family are in, we are here to help. Call us right away to discuss:
- Wrongful death car accident lawsuits
- Wrongful death commercial truck wreck lawsuits
- Wrongful death oilfield accident claims
- Wrongful death defective product claims
- Wrongful death medical malpractice lawsuits
- Wrongful death railroad accidents
- Wrongful death nursing home abuse and neglect claims
- Wrongful death daycare accident lawsuits
Wrongful Death Damages
If you are eligible to file a wrongful death claim or lawsuit, you may be entitled to recover:
- Funeral and Burial Expenses: You can demand full compensation for the cost of burying or cremating your loved one and holding a funeral or other service.
- Medical Expenses: You can demand reimbursement for the medical expenses your relative incurred between the date of the accident and their date of death.
- Lost Income: If you relied on your relative’s income, you could demand compensation for their lost future earnings.
- Lost Inheritance: Had your relative lived, they likely would have earned an income, saved, and invested. Over time, they would have built an estate they could pass on to their surviving spouse and children. You can demand compensation for the inheritance you will no longer receive.
- Loss of Household Services: Your loved one may have been the primary caregiver and managed the household instead of working. You can demand compensation for the cost associated with losing these services, which you must now pay for.
- Mental and Emotional Distress: You and the other surviving relatives can demand compensation for your grief, distress, and suffering.
- Loss of Consortium: A surviving husband or wife can demand compensation for the loss of their spousal relationship. A child can demand compensation for the loss of their parent’s love and guidance.
- Punitive Damages: Punitive damages are intended to punish a wrongdoer for conduct that is more than ordinary negligence. If you can establish the other party’s conduct was egregious, reckless, or malicious, you might receive additional compensation.
- Social Security Benefits: You might be entitled to survivors benefits if your loved one was collecting Social Security disability benefits
Proving Your Wrongful Death Damages
Determining the value of your family’s wrongful death damages and establishing them to an insurer or in court can be tough. These are two of the many reasons we recommend working with a lawyer if you are interested in suing for wrongful death.
Economic damages in a wrongful death lawsuit can be calculated and proven with documentation, including bills, receipts, pay records, and tax returns. We may hire a financial or economic expert to calculate the lost future income and lost inheritance.
Non-economic damages, which are a large portion of any wrongful death settlement or verdict, are more challenging to calculate and prove. To determine the value of your non-economic damages, we will analyze the outcome of similar cases. We also may calculate the value using a multiplier between one and a half and five. Depending on the severity of your injuries, we will multiply this figure by the value of your economic damages.
When it comes to proving your intangible losses, we may rely on you and your relative’s testimony. If your mental health has suffered, we may use records of therapy, prescription drugs, and other mental health treatments as proof.
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Proving Negligence in a Wrongful Death Case
To win a wrongful death insurance settlement or court ruling, you must establish the other party’s negligence. This requires proving four separate elements:
A Duty of Care
Most individuals and businesses are required to uphold a duty of ordinary care. They must act as reasonably prudent people would under the same or similar circumstances. Certain professionals may have a more specific duty of care based on their work.
A Breach of Duty
You must prove to an insurer or the jury that the other party breached that duty of care in some way. For instance, you may establish an at-fault driver was speeding and ran a red light. You may show that an at-fault truck driver had violated the hours of service rules and was drowsy. Or, you may be able to prove a physician unreasonably misdiagnosed you.
Proving the breach of conduct occurred may require accident or police reports, business records, employment records, driving records, photos, video footage, eyewitness statements, medical records, sound recordings, and more.
Direct and Proximate Causation
Once you establish the other party failed to act as they should have under the circumstances, you must show that their careless, reckless, or willful conduct caused the fatal accident. You must establish a direct link between the breach and the deadly accident. You also must show that the accident was a foreseeable risk of the defendant’s conduct.
You must establish your economic and non-economic injuries associated with your relative’s death.
Wrongful Death Statute of Limitations
In both Texas and New Mexico, there are some general exceptions regarding how long you have to file a wrongful death claim . If you are worried you have waited too long, talk with a lawyer right away.
- Texas gives you two years from the date of your loved one’s death to file a wrongful death lawsuit.
- New Mexico gives you three years from the date of your loved one’s death to sue for wrongful death.
Wrongful Death Claims Process
If you are thinking about suing another person or business for wrongful death, we can guide you through:
- The Investigation: You and your family will need to thoroughly investigate and establish the cause of your loved one’s fatal accident.
- Fault Analysis: After conducting an independent and in-depth investigation, we will identify who was directly at fault and who is liable. This may be the same or two different parties. For example, an employer may be responsible for a fatal accident caused by a negligent worker.
- Workers’ Comp Analysis: If your loved one was killed in a workplace accident; we would identify whether they were covered by workers’ compensation. If so, you may have a claim for funeral, burial, and income benefits.
- Notice: If you wish to pursue an insurance claim settlement, we will provide notice of your relative’s passing and your family’s claim to the relevant insurance company. The insurance policy may be car insurance, commercial truck insurance, homeowner’s insurance, or a business liability policy.
- Damage Calculations: Before we can demand a certain amount of compensation, we must identify and place a value on you and your relative’s damages, including your economic and non-economic injuries.
- Filing a Lawsuit: Whether or not we expect to negotiate a settlement, we may recommend filing a wrongful death lawsuit. Doing so shows we are serious about recovering compensation. It also enables us to gather additional evidence during discovery.
- Settlement Negotiations: Most fatal accident claims are resolved through a pre-trial insurance settlement. When you receive a settlement offer, we will carefully review it and advise you whether it is fair or low. In most cases, this will be the beginning of negotiations between the insurer and us.
- Trial: When a settlement is unavailable, or negotiations break down, then your only option is to pursue wrongful death compensation at trial.
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Wrongful Death Lawsuits and Trial Preparation
Many wrongful death cases are resolved through settlement negotiations. However, that does not mean litigation is not a central aspect of these claims. Filing a lawsuit involves:
- Filing the complaint;
- Serving the defendant(s) with notice;
- Receiving the defendants’ response;
- Amending the complaint if necessary;
- Going through discovery;
- Analyzing the additional evidence we obtain and how it impacts your claim;
- Asking the judge to make substance and procedural decisions before trial through motions;
- Entering into settlement negotiations;
- Agreeing to a settlement and dismissing the case or scheduling a pre-trial conference;
- Going through voir dire to select a jury; and
- Presenting your case at trial.