UTAH WRONGFUL DEATH CLAIMS
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My first experience with a wrongful death case came at age 12 when my father died in a car accident. My father was a passenger in the front seat of a Volkswagen bus traveling east on I-80 near Wells, Nevada. The driver fell asleep crossing lanes of traffic and striking another car headon. My mother, who had not worked in years and did not have a driver’s license, was left with six children under the age of 14.
My mother hired a lawyer who brought a claim against the driver, a close family friend. The resulting settlement made news as it was one of the largest wrongful death settlements in the state at that time.
The settlement funds helped our small family to survive and they paid for my LDS mission to Rome and paid for my first year of college.
It may have been this experience which inspired me to become a personal injury attorney.
Since that time, as a personal injury attorney, I have handled a number of wrongful death claims– some high profile, some not.
In the 90's I sued AC/DC over a wrongful death at a rock concert at the Salt Palace. That settlement was one of the highest ever settlements for a wrongful death claim of that kind.
I also represented four young children whose father was killed in a car accident.
WHO MAY FILE A WRONGFUL DEATH CLAIM?
A claim for wrongful death may be filed by heirs or by a personal representative for the benefit of the heirs. Utah Code Section 78-11-7.
WHO IS AN HEIR?
An “heir” for purposes of a Utah wrongful death claim includes:
(1) the following surviving persons:
(a) the decedent's spouse;
(b) the decedent's children;
(c) the decedent's natural parents, or if the decedent was adopted, then his adoptive parents;
(d) the decedent's stepchildren who:
(i) are in their minority at the time of decedent's death; and
(ii) are primarily financially dependent on the decedent.
If no one in category (1)(a)(b) or (c) outlives the decedent then an “heir” means any blood relative as provided by the law of intestate succession. “Intestate succession” means the decedent died without a valid will. Source Utah Code Section: 78-11-6.5.
WRONGFUL DEATH OF AN ADULT
Utah law distinguishes between a claim for the wrongful death and a claim for the wrongful death of a child. Under Utah Code Section 78-11-6 such damages may be given as under all the circumstances of the case may be just. The survivor of an adult killed in a wrongful death accident may claim damages (legal term for “money”) for:
a) loss of financial support;
b) loss of love, companionship, society, comfort, care, protection and affection;
c) loss or reduction of inheritance;
d) any other evidence of assistance or benefit that the surviving claimant would likely have received had the decedent lived;
e) the decedent's medical expenses resulting from the subject event causing the death;
f) damage to or destruction of the decedent's personal property.
The age, health and life expectancy of the decedent is a factor in determining the amount of the settlement or verdict but pain or suffering of decedent prior to his/her death is not.
Statutory heirs may recover funeral and burial expenses only if the estate is impecunious (i.e. “broke”). Source: Utah Code Section 78-11-7. Morrison v. Perry, 104 Utah 151, 140 P.2d 772 (1943).
Source: Utah Model Jury Instruction CV2013 which is based on the following references:
Utah Code Sections 78-11-7 through 78-11-12.
Oxendine v. Overturf, 1999 UT 4, 973 P.2d 417 (1999).
In re Behm's Estate, 117 Utah 151, 213 P.2d 657 (1950).
Morrison v. Perry, 104 Utah 151, 140 P.2d 772 (1943).
Allen v. United States, 558 F. Supp. 247 (D. Utah 1984).
Platis v. United States, 288 F. Supp. 254 (D. Utah 1968), aff'd, 409 F.2d 1009 (10th Cir. 1969).
WRONGFUL DEATH OF A MINOR
A lawsuit for the death of a minor child may be filed by a parent of guardian of the minor child. If a parent, stepparent, adoptive parent, or legal guardian is the alleged defendant in an action for the death of a child, a guardian ad litem may be appointed to file the wrongful death lawsuit. A guardian ad litem is a special guardian appointed by the court to pursue a lawsuit on behalf of a minor. Such guardian is considered an officer of the court to represent the interests of the minor in the lawsuit. Source Utah Code Section 78-11-6.
CALCULATING THE VALUE OF THE SETTLEMENT OR VERDICT FOR THE WRONGFUL DEATH OF A MINOR CHILD
As mentioned above, under Utah Code Section 78-11-6 “such damages may be given as under all the circumstances of the case may be just.” The survivor of a minor child killed in a wrongful death accident may claim damages (legal term for “money”) for:
(1) The loss of financial support, past and future, that the parent or guardian would likely have received, from the minor child had the minor child lived. This amount should be reduced by the costs that the parent or guardian would likely have incurred to support the minor child, had the child survived, until the child reached 18 years of age.
(2) The loss of love, companionship, society, comfort, care, protection and affection which the parent or guardian has sustained and will sustain in the future;
(3) The age, health and life expectancies of the minor child and the parent or guardian immediately prior to the death;
(4) The loss of inheritance from the minor child that the parent or guardian is likely to suffer because of the minor child’s death;
(5) Any other evidence of assistance or benefit that the parent or guardian would likely have received had the minor child lived;
(6) The reasonable and necessary expenses incurred by the parent or guardian for the minor child for any medical care because of the circumstances that caused the death;
(7) The reasonable expenses that were incurred for the minor child’s funeral and burial.
Pain or suffering of the decedent prior to death is not a factor in wrongful death claim brought by survivors of a minor. These are part of what is known as a “survival claim.” See section below for discussion of “survival claim”.
Source: Utah Model Jury Instruction CV2014 based on the following references:
Utah Code Sections 78-11-7 through 78-11-12.
Jones v. Carvell, 641 P.2d 105 (Utah 1982)
In re Behm's Estate, 117 Utah 151, 213 657 (1950).
Allen v. United States, 588 F. Supp. 247 (D. Utah 1984).
Platis v. United States, 288 F. Supp. 254 (D. Utah 1968), aff'd, 409 F.2d 1009 (10th Cir. 1969).
DAMAGES FOR SUFFERING AND LOSSES BETWEEN INJURY AND DEATH: SURVIVAL CLAIM
If time passed between the injury and death there is what is known as a “survival claim” and a claim may be made for economic and noneconomic damages for the period of time that decedent lived after the injuries. This is for cases where the death is caused by the injury. If a person is injured but later dies of other causes a claim may be made for economic damages caused by the injury but you may not make a claim for non-economic damages such as pain and suffering. So, a person may be injured and suffer but if he dies from other causes before he settles his case his survivors cannot recover money for pain and suffering
Source: Utah Model Jury Instruction CV2015 based on the following Utah legal references:
Utah Code Sections 78-11-7 through 78-11-12.
In re Behm's Estate, 117 Utah 151, 213 657 (1950).
Allen v. United States, 558 F. Supp. 247 (D. Utah 1984).
Platis v. United States, 288 F. Supp 254 (D. Utah 1968), aff'd, 409 F.2d 1009 (10th Cir. 1969).
COMPARATIVE NEGLIGENCE OF DECEDENT
Under comparative negligence statute, any negligence of decedent is, in effect, imputed to wrongful death plaintiff: thus, if decedent is found to be more than 50% negligent all recovery is denied. Kelson v. Salt Lake County, 784 P.2d 1152 (Utah 1989). Source: Utah Model Jury Instruction CV2016.
WRONGFUL DEATH STATUTE OF LIMITATIONS
"An action may be brought within two years: (2) for recovery of damages for a death caused by the wrongful act or neglect of another;"
Utah Code Section 78-12-28.
UTAH’S LARGEST WRONGFUL DEATH VERDICT
Utah’s largest wrongful death verdict was obtained in a federal court case that was filed by survivors of Rulon Allred. The case was tried in the Federal District Court in Salt Lake City before a jury comprised of citizens chosen from around the state. Following their deliberation in the case, the jury rendered a verdict in favor of the Allred family for over Fifty Million Dollars. The defendant did not show up to defend the case. Nor did he hire a lawyer do defend himself. To my knowledge, no money was ever collected on this verdict.
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