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  • Richard L. Duquette

Bicycles and Wrongful Death: Part 3 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 article discussed the problem of proving fault, and the distinction between wrongful death claims and a survival action. Part two discussed the classes of plaintiffs who may bring a wrongful death action. Part three explains the types of damages that are available to them.

What Kinds of Damages are Available?

Perhaps the most difficult part of any wrongful death case is valuing the damages. After all, how does one place a value on a human life? Numerous scholarly articles have beenwritten on the subject from both the legal field and the economics field. One approach is called the "value of a statistical life" (VSL) model, which is commonly used for worker's compensation death benefits and other administrative situations, such as calculating the dollar value of lives saved by a particular regulation. Simply put, VSL is a theoretical dollar amount that a person would hypothetically pay to avoid being subjected to a particular risk.

While VSL has value for statistical and economic analysis, it isn't a great way of assessing the actual losses suffered by a given family. To address this, California courts have developed a specific legal framework for determining wrongful death damages. Based on the case law, the Judicial Council of California has promulgated jury instructions that summarize the available damages. CACI # 3921 awards damages for the following:

  1. Economic Damages: (Direct Pecuniary Loss)

    1. Loss of Financial Support and Contributions

    2. Loss of Expected Gifts and Benefits

    3. Funeral and Burial Expenses

    4. Loss of Household Services

  1. Non-Economic Damages:

    1. Loss Of

      1. Love,

      2. Companionship,

      3. Comfort,

      4. Care,

      5. Assistance,

      6. Protection,

      7. Affection,

      8. Society,

      9. Moral Support, And

  1. Lost Enjoyment of Sexual Relations

  2. Lost Advice, Training, And Education

Economic damages seem straightforward at first. Particularly in the case of a sole or primary breadwinner, the loss of financial support is often the greatest measure of the loss. This is calculated by taking expected income and projecting it based on life expectancy (there are life expectancy tables for this). This means that the most valuable cases tend to be when a young parent in a high paying job dies. They have a high fixed income, with expectations of future increases, and a long future life expectancy. These factors combine for large awards based on lost future financial support.

Expected gifts and benefits are somewhat more speculative, but they include such things as whether it was anticipated that the parent would pay for the children's college, etc. These may be proven by, for instance, showing that a college fund had been opened for a young child, even if it was not particularly large yet. But this fact will also be compared with the decedent's earning potential and the child's demonstrated educational prospects (based on past school performance). These questions can be somewhat speculative, and you can count on the insurance companies trying to minimize the possibility of future earnings and financial assistance any way they can.

Some Damages Hard to Quantify

Loss of household services are less straightforward. When a homemaker dies, or other family member whose value to the family primarily comes from their services, the question of how to value these services is much more challenging and much more disputed. Legal economists have written numerous articles about how such services should be valued, both in the context of wrongful death, and in the context of divorce settlements. One way of measuring value is "replacement value," which asks what it would cost to hire someone to perform the same services. But this often ends up undervaluing domestic services, because it does not account for the special dedication, decision making and purchasing authority, and multi-tasking abilities of a true home maker. Further, it does not account for the opportunity costs incurred by a spouse who chose to forego higher education or a well-paying career of their own in order to be a home maker. Often, the real value provided by a non-employed spouse is much greater than the price of merely hiring a cook, a gardener, or a maid. A good attorney will know how to make these nuanced economic arguments to maximize the value of the recovery.

This difficult question of value brings us to the even more difficult questions of how to put a dollar value on non-economic damages. The law does not award damages for mere grief, in itself. But it does award damages based on the value of the relationship lost to the bereaved, using factors such as love, companionship, comfort, care, assistance, protection, affection, society, and moral support. But how do you put a dollar value on these things? In the context of a court case, this means providing evidence of the depth and warmth of the relationship between the decedent and each of the bereaved family members individually. This means showing family photos, records of frequent phone calls, frequency of visits, letters or emails between the family members (this could even include social media interactions), and the testimony of non-family members about the closeness of the relationship.

Family Tension and Ugly Defense Tactics

Sometimes, insurance companies will try to introduce evidence of tension in the family, or even of infidelity between spouses, in order to minimize the losses. While this is a morally despicable thing to do to a grieving family, it is sometimes an effective legal tactic. It is important therefore for plaintiffs to be honest with their attorney about all the facts of the relationship. This way, a competent attorney can effectively plan for how to handle these issues to protect the family. This is also another good reason to have a single attorney representing all claimants. When the claimants are competing against each other for the bigger share of the damage award, they often to the insurance company's dirty work for them, exposing tensions in the family for the defense to exploit. This hurts everybody. But when the family is united in grief, and supportive of each other's mutual claims for losses, the case is stronger, and this benefits all of the plaintiffs.

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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