Atlanta Wrongful Death Lawyer

Who can file a wrongful death action?

FAQ

What is the statute of limitations for a wrongful death claim in Georgia?

Georgia has a 2-year wrongful death statute of limitations, which begins to run on the date of the death of the decedent (O.C.G.A § 9-3-33). However, depending on individual and unique circumstances, this deadline might be shortened or extended, which is why it’s important to consult with a wrongful death attorney near you as soon as possible.

What damages can be awarded for wrongful death?

State laws dictate which types of damages are awarded for wrongful death. Some states permit compensatory damages as a form of restitution and to compensate a family for the loss of a loved one, as well as compensation for any medical expenses and funeral expenses incurred.

Georgia’s statutes permit 3 categories of compensatory damages to be awarded.

1. The first category under Georgia’s wrongful death statute is for the “full value of the life of the decedent, as shown by the evidence.”
2. The second category is for the administrator or executor of the estate, who may seek damages relating to funeral, burial and other estate-related charges.
3. The third category relates to a “survival” claim and includes medical expenses, pain and suffering of the decedent and other damages during the period between the injury and the death.

Interest may be added to the damages awarded, calculated back to the date of death.

Some states also allow punitive damages to be awarded in a wrongful death claim. Georgia’s wrongful death laws do not mention punitive damages, and therefore Georgia courts have strictly construed the statute to not permit any punitive damages to be awarded in a wrongful death claim.

With that said, Georgia courts have permitted punitive damages in a survival action where there has been an extreme indifference to the value of human life and where the tort action survives the death of the decedent under the Georgia survival statute.

Due to the complexity of the laws in regards to the types of damages for a wrongful death claim and a survival action, it is extremely important that a surviving spouse, child, parent or the executor of an estate that believes to have a wrongful death claim contact Scholle Law for counsel.

How are wrongful death damages distributed?

Damages awarded or settlement proceeds obtained in a wrongful death action or claim are distributed to the wrongful death beneficiaries, including (if applicable) a spouse, children, the parents of the decedent—or to the representative of the estate if none of those exist. Therefore, if there’s a surviving spouse who doesn’t have any surviving children with the decedent, then the damages shall be distributed exclusively to the spouse.

If the spouse and children both survive the decedent, the damages shall be distributed equally among them—provided that the spouse shall never receive less than a one-third share per Georgia statute.

If there is not a surviving spouse, the surviving children will share equally the damages proceeds—provided that the child is grown and an adult. If the surviving child is a minor, Georgia requires recovery of less than $15,000 to be held by the child’s natural guardian for the benefit of the child. If the recovery is $15,000 or more, it must be held by a guardian of the property of the child.

If there is not a surviving spouse or surviving children, the parents are next of kin and will share the damages proceeds (subject to paternity, maternity, support or adoption issues).

If there is no spouse, child or parent surviving the decedent, the recovered amount shall be recovered by the estate and distributed accordingly.

How does wrongful death differ from homicide?

Wrongful death is a civil claim brought by a person (administrator of the estate, for example) against a party on behalf of the person who died (legally known as the “decedent”). The party against whom a wrongful death action is brought could be another person, business entity or a government entity.

Wrongful death by another person is a type of homicide. “Homicide” is generally defined as the unlawful killing of a human being by another and therefore this includes criminal deaths such as vehicular homicide and wrongful death.

Criminal death is governed by a state’s criminal code. The criminal code of Georgia can be found in Title 16 (Crimes and Offenses) of the O.C.G.A. and includes murder (such as felony murder) and manslaughter (voluntary and involuntary).

There are several important differences between criminal death and wrongful death in the state of Georgia:

• Unlike criminal death prosecution, a district attorney’s office will not pursue a wrongful death claim on behalf of the decedent because wrongful death is a civil claim.
• Even if the district attorney’s office decides to not pursue a criminal action against an individual for a criminal death, a civil wrongful death action can be pursued by the wrongful death beneficiaries.
• If the district attorney’s office does pursue a criminal action against an individual, a civil wrongful death action may also be pursued, regardless of whether or not the defendant in the case was found guilty or not guilty. Moreover, issues of double jeopardy will not apply.
• The criminal code of Georgia does not apply to a wrongful death action. Instead, Chapter 4 of Title 51 (Torts) of O.C.G.A. applies.
• There will not be a “guilty” or “not guilty” verdict in a wrongful death action, but rather a “liable” or “not liable” action as it is a civil claim.
• There is no jail time or imprisonment for a wrongful death action in the state of Georgia, but rather money damages may be awarded if the responsible party (person, business or government entity) is found liable.