Filing a Wisconsin Wrongful Death Lawsuit
Wrongful death lawsuits are usually brought against a person whose negligence or intentional action caused someone's death. Wrongful death lawsuits are often filed when a family member loses a loved due to a car accident, medical malpractice, products liability, or an accident that occurs at work.
However, only one such category of family members has the right to pursue the claim, with the order determining that right to recover set forth in the statute. Sometimes, a wrongful death lawsuit may be appropriate in the wake of a criminal case where there was not adequate evidence to find the perpetrator guilty of murder. This is because a wrongful death lawsuit is a civil lawsuit that requires a lower standard of proof than a criminal trial. Additionally, in a criminal lawsuit, the perpetrator may face jail time, fines or probation, whereas in a wrongful death lawsuit the family is seeking monetary compensation from the party who was responsible for the victim's death.
The wrongful death statutes are very limited in the scope of the damages that can be claimed. Damages include past medical and hospital bills; funeral expenses; economic losses; and the loss of love in society and companionship by the survivor. However, the statute caps the amount that can be recovered for loss of love in society and companionship. If the deceased experienced an awareness of the impending accident or endured conscious pain and suffering before death, the estate has a right to pursue compensation for those damages. The wrongful death statutes do not allow for a claim for punitive damages. However, if the deceased in fact did experience conscious pain and suffering, then the estate may have a right to pursue claims for punitive damages, if the evidence warrants it. If the estate is successful in recovering these additional damages not set forth in the wrongful death statutes, then the money recovered by the estate passes to those who are named in the will.
How to Proceed with a Wrongful Death Lawsuit
According to the Wrongful Death Statute of Wisconsin, the following family members are eligible to file a wrongful death suit on behalf of the deceased: surviving spouse, domestic partner, child, parent, or guardian of the deceased. A personal representative of the estate is permitted to file a wrongful death lawsuit as well. Once a family member or personal representative decides to bring suit, he or she should take the following steps:
Consult an experienced wrongful death attorney: The loss of a loved one can be an emotional time for a family and seeking the help of a wrongful death attorney can help relieve some of the extra stress of filing a lawsuit. A knowledgeable wrongful death attorney can walk a representative through the litigation process and help him or her file the lawsuit within a timely manner.
File the lawsuit within the statute of limitations: In Wisconsin, wrongful death lawsuits must be filed within three years of the date of the victim's death. A failure to bring a suit in a timely manner can result in an automatic dismissal. Thus, it is imperative that a personal representative contact an attorney well before the three-year time limit so that the attorney has adequate time to conduct an investigation and gather evidence to establish the case.
File a complaint with the state court: A wrongful death lawsuit formally begins once a complaint is filed with the state court. The complaint must be detailed and state all the pertinent facts to establish a wrongful death claim. The complaint must also allege what type of damages to which the personal representative is entitled as a result of the wrongful death.
Once a claim is filed with the state court, the defendant (party who is allegedly responsible for the victim's death) will usually file a response, and the lawsuit will officially be in the discovery and pretrial phase. From there, the plaintiff may work with his or her lawyer to determine whether to proceed to trial or negotiate a settlement.
If you have lost a loved one in a tragic accident and are contemplating filing a wrongful death lawsuit, contact one of the Green Bay wrongful death attorneys or Appleton wrongful death attorneys at Herrling Clark Law Firm Ltd. Our offices are located in Green Bay, Oshkosh, Appleton, and New London, and we can therefore meet you at a location convenient for you to help you through this difficult time.