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  • Richard L. Duquette

Bicycles and Wrongful Death: Part 2 Who may Claim Damages?

In bicycle vs. auto collisions, the bicyclist is almost always the party who is more likely to be injured. This is just the nature of things when a human body collides with thousands of pounds of steel at high speeds. For the same reason, sometimes bicyclists tragically lose their life as a result of these collisions. This three-part article addresses the question of what legal remedies exist for the surviving family of a bicyclist who is killed by a negligent driver.

Part one of this series discussed the issues of proving fault and the distinction between survival actions and wrongful death cases. Part three will explain the different types of damages available in a wrongful death case. This installment discusses the categories of plaintiffs that may sue for wrongful death.

Who May Claim Wrongful Death Damages?

Unlike the survival action, the plaintiffs in a wrongful death suit are the surviving relatives. The focus of this action is on the losses they suffered, not on the damages that would have been available to the decedent had they survived. The class of relatives eligible to claim wrongful death damages is defined in CCP §377.60. This provision limits eligible survivors to the following (Note: this list is explanatory, not a verbatim quote of the statute, as it accounts for references to the intestate succession provision of the Probate Code):

  1. The decedent's surviving spouse or domestic partner,

  2. The surviving children of the decedent, or the issue (offspring) of deceased children,

  3. If the decedent has no children or grandchildren, the decedent's parents,

  4. If the decedent has no children, grandchildren, or surviving parents, the decedent's siblings,

  5. A putative spouse (someone invalidly married to the decedent but with a good faith belief that the marriage was valid), or

  6. Any minor who had lived in the decedent's household as a dependent for at least 6 months prior to the death.

Any member of these classes of relatives may therefore make a wrongful death claim, although the parents and siblings may only make such a claim on the conditions specified in items 3 and 4 above. Each individual member of each class has a distinct personal claim. These claims may be brought together or separately, but they will always be consolidated into a single proceeding.

It is critical that a plaintiff's attorney determine the identities and whereabouts of all eligible claimants for purposes of notifying them of the pending claim and giving them the opportunity to join in the suit. This means that the family member who first contacts an attorney needs to provide the attorney with as much information as possible about the family, and particularly about anyone who might fit into one of the categories described above. Not all claimants need to be represented by the same attorney, but they will all need to be party to the litigation or sign a declaration waiving their claim. If a case proceeds to judgment or settlement and then an eligible heir comes out of the woodwork later, the case will not be reopened, but the heir may have a claim against the other family members for not notifying him of the claim.

Sometimes conflicts may arise between potential beneficiaries, and sometimes there are legitimate reasons why one claimant is entitled to a greater share of the damages than another claimant. When these conflicts exist, or when the claimants cannot agree as to apportionment of the damages, it is often necessary for the different claimants to be represented by separate attorneys. In these cases, the judge is charged with dividing up the total damages among the various claimants according to the principles discussed below. However, when the family of the deceased can cooperate and work together, they may be adequately represented by a single attorney, whose focus will be on maximizing the total damage award, which will then be divided among the plaintiffs by agreement.

Ideally, all plaintiffs will agree to work together and be represented by a single attorney. This simplifies negotiations as well as the suit itself. Where the interests of the different family members are genuinely in conflict, or when some family members (such as small children or those with physical or mental health issues) have special needs requiring a guardian ad litem, multiple attorneys may be necessary. Each claimant has an absolute right to hire their own attorney, regardless of what the rest of the family decides. But keep in mind that the more attorneys are involved, the more of the total recovery goes to attorney fees.

Contact an Experienced Attorney

Wrongful death cases are very painful and extremely stressful for a family to litigate. If you have lost a loved one to an accident, you need the services of an attorney with the skill, experience, and compassion to fight for you and your family and take the stress off you. This allows the family to focus on grieving and moving on, rather than worrying about getting compensated. The experienced professionals at the Law Firm of Richard Duquette will protect you from the additional stress and heartache of dealing with the insurance companies and protect the memory of your loved one.

© Richard L. Duquette and Justin M. Nelson. All rights reserved.


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