Articles Posted in Death Cases

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My brother was killed in a wreck with a big truck.  I am named in the will as the executor of his estate and the court has appointed me as the executor.    I want to file a lawsuit against the truck driver and trucking company that caused the wreck, but my brother’s wife says she is going to file it.  I don’t think my brother’s wife should be permitted to file the case because they were not living together at the time of the wreck because she had filed divorce proceedings against him six months earlier.

In Tennessee, both you and your sister-in-law have the right to file suit and if you cannot decide between yourselves who should control the litigation a judge will decide who the best person is to handle the case.   A lawyer who is experienced in wrongful death cases can guide you through this process, help you try to work this matter out with your sister-in-law, and help you persuade the court that you should take the lead on this case.

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My wife was hurt in a car wreck in Tennessee +on December 15, 2009 and died in the hospital on January 21, 2010.  What is my deadline for filing a lawsuit against the driver who caused the wreck?

Unless a lawyer familiar with all of the facts advises you to the contrary,  you should assume that you must file suit against the responsible parties before the one-year anniversary of the wreck.  

In some states the date of death triggers the start of the time period to take legal action.  That is usually not so in Tennessee.   Thus, to be safe work under the assumption that the one-year period starts to run from the date of the original injury that later resulted in death.

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I was hurt in a car wreck six months ago.  It wasn’t my fault.  I have been waiting for over a year for the case to settle.  I lost three months of wages and have had to pay some medical bills that were not covered by my health insurance.  Can I get the insurance company to pay interest on my settlement?  It doesn’t seem fair that they can delay my settlement and not have to pay interest.

Not under Tennessee law.   Tennessee law does not permit the recovery of interest in personal injury or wrongful death lawsuits.  

The only exception to this rule is if you win a case and a judgment is entered by the court you are permitted to recover interest.  Interest accrues at the rate of 10% per year on the amount of the judgment that is unpaid.  

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My husband was killed in a car wreck by a drunk driver.  What damages can be recovered by me and our children?

These are the types of damages that can be recovered: (a) medical expenses; (b) funeral bills; (c) conscious pain and suffering from the date of the injury until the date of death; (d) loss of enjoyment of life between the date of injury and death; (e) loss of earning capacity between the date of injury and death; and (f) the pecuniary value of life.

In all cases, the pecuniary value of life includes the present value of the decedent’s lost future earning capacity less those living expenses necessary to maintain the decedent’s person so that they can work. In cases involving the death of a spouse, the surviving spouse can recover damages for the loss of consortium of the decedent. In cases involving the death of a parent, the children can recover damages for the loss of love, society, affection and guidance of the parent.. Each of these types of damages are included in the definition of the “pecuniary value of life.”

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My child was killed by a drunk driver.   He was 10 years old. I want to file a lawsuit.  His no-good mother, who never paid child support as ordered by the court and did not visit my son for the for the six year period after our divorce, says she is going to file a lawsuit, too.   Can she do that?  Does Tennessee law permit her to get money from the death of our son when she had nothing to do with our son when he was alive?

Unless you have some physical or mental health issue that you have not mentioned, you will have the right to bring the lawsuit. 

Tennessee law provides that a parent who has a parent who has intentionally refused or neglected to pay any support for a child for a two-year period, or for the life of the child, whichever is less, when subject to a court order requiring the payment of child support and who has intentionally refused or neglected to contact the child or exercise visitation during such period is not permitted to recover damages for the death of the child.  Thus, to cut off the mother’s right to money out of any recovery you make, you will have to demonstrate that (a) there was a child support order; (b) the mother intentionally did not pay for at least 2 years; and (c) he intentionally did not visit the child.

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 I have a personal injury case going to try in Cookeville, TN next month.  How many jurors need to vote for me for me to win?

You will probably have a 12-person jury.  That is the typical number of jurors in a civil jury trial in Tennessee.  You and your opponent may agree to a lesser number of jurors, but you will almost certainly have 12 jurors (and one or more alternate jurors) hear the case.

All twelve jurors must vote for you for you to win the case.  Some states permit a lesser number (10 of 12, 9 of 12) but in Tennessee the jury verdict must be unanimous unless the parties to the lawsuit agree on that the verdict may be something other than a unanimous verdict.  For obvious reasons, the defense will rarely agree to such a proposal.

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I was in a car wreck last week.  I was hurt pretty bad.  I got home from the hospital last night and a lawyer called me and said that he wanted to represent me in my case.  I have no idea who this guy is or how he got my name and telephone number.  Nobody in my family has ever heard of him.  Can he call me like this?  Should I hire him?  He said he could get me a lot of money.

This lawyer is a scumbag – not only should you not hire him but you should report him to the Tennessee Board of Professional Responsibility.  Rule 7.3(a) of the Rules of Professional Conduct says this about soliciting a potential client by telephone:  "(a) If a significant motive for the solicitation is the lawyer’s pecuniary gain, a lawyer shall not solicit professional employment by in-person, live telephone, or real-time electronic contact from a prospective client who has not initiated the contact with the lawyer and with whom the lawyer has no family or prior professional relationship."  The Comment to the rule explains why is exists:

[1] There is a potential for abuse inherent in direct in-person or live telephone contact by a lawyer with a prospective client known to need legal services. These forms of contact between a lawyer and a specifically targeted recipient subject the layperson to the private importuning of the trained advocate in a direct interpersonal encounter. The prospective client, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult fully to evaluate all available alternatives with reasoned judgment and appropriate self-interest in the face of the lawyer’s presence and insistence upon being retained immediately. The situation is fraught with the possibility of undue influence, intimidation, and overreaching.

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I was in a car wreck about 6 months ago.  The other driver admitted fault.  My medical bills are about $25,000.   I have been released by my doctor.  My lost wages are $2000.   How quickly will my case settle?

At the outset you need to understand that your case may not settle at all.  In Tennessee the insurance company does not have a duty to settle your case and in fact does not even owe you a duty to fairly evaluate your case.    It can settle a case, or not settle a case, on whatever schedule it wants to put in place.

However,  if the insurance company wants to settle the case it needs to have information from your lawyer.  At an absolute minimum, the company needs the accident report, your medical records and bills, perhaps some of your previous medical records, proof of lost wages from your employer, and an understanding of how the injuries have impacted your life.  To the extent you claim a permanent injury, future medical expenses, future loss of earning capacity, or other damages, the insurance company will need proof of that.

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My dad was dropped in a nursing home.  He broke his hip.  He never recovered from it and died two months later.   Do we have a wrongful death case or a personal injury case?

First, no one can tell you if you have a case at all without doing an investigation into the circumstances of the fall.

Second, if you do have a case, it will only be a personal injury case unless a doctor will testify that more likely than not the death was a result of the fall.   To make this determination, a doctor will need to review your father’s medical records.  An autopsy may also be necessary.

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My wife was killed in a tractor-trailer wreck.   The wreck was not her fault.  What is this case worth?

That question is impossible to answer without a great deal more information.   Was your wife working outside the home?   What was her income?  What was her age?  What was her state of health before the wreck?   How many children does she have?   Do any of those children have special needs that required her to play a bigger role in their lives after they reached the age of 18 than the ordinary adult child?  

These and many, many more questions must be answered before any lawyer can give you a reasoned opinion on the value of a wrongful death case.  

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