When a family member passes away, in addition to mourning, relatives are frequently left with the responsibility of handling their loved one’s affairs. In the case where he or she sustained personal injuries before their passing, the family may have to add litigation to those responsibilities. Whether your family member passed away as a result of the incident or did not yet file an intended lawsuit, Tocci Law can help.

Does death cancel a lawsuit for personal injuries?

No, as a matter of fact, in some cases it enhances the claims against the wrongdoer.  First, we must decipher whether the passing was caused by the accident or resulting injuries or if the events are wholly unrelated. If the events are unrelated, the ability to sue the wrongdoer is not waived; instead, survivors may file a lawsuit on behalf of their late family member.  The wrongdoer does not win the legal lottery if the injured party passes away. Their estate is entitled to any pain and suffering that should be compensated.  If the events are related, then in addition to suing for personal injuries, a second cause of action for wrongful death could be asserted against the wrongdoer. While these bases for a lawsuit are similar, the damages are assessed differently.

What are you seeking in a personal injury and wrongful death lawsuit?

A lawsuit solely for personal injuries without a claim wrongful death is the pursuit of compensation for pain and suffering endured by the decedent. Depending on your specific circumstances, you may be seeking reimbursement for lost wages and medical expenses.  A personal injury lawsuit evaluates the loss or damages experienced personally by the decedent. If the accident caused sudden death, there may be no claim for conscious pain and suffering.

When death results from the accident, a wrongful death claim seeks compensation for losses to the family. In New York State, there is no recovery for loss of enjoyment of life. The measure of damages is limited to pecuniary loss to the family. In addition, a child may recover for loss of parental guidance. Pecuniary losses considered include:

-funeral and burial expenses;

-medical bills;

-loss of financial support;

-Loss of companionship.

Unfortunately, in New York State, emotional damages experienced by the family members is not considered in the majority of cases.

Who may file a wrongful death claim or personal injury lawsuit?

Specific rules govern who can file a personal injury and wrongful death lawsuit. Both a lawsuit for personal injuries and wrongful death must be filed by a legal representative of the decedent’s estate. The Surrogate’s Court grants the authority for the legal representative to file the lawsuit.  Without this authority, a lawsuit cannot properly be filed. Generally, the closest family member is the proper party to seek legal authority.  This includes a surviving spouse, adult children, parents, siblings, etc.  We can assist you in selecting the proper party, as well as filing the petition and required documents with the Surrogate’s Court, prior to filing the lawsuit.

What are the time limits for filing a lawsuit?

In New York, personal injury lawsuits have a three-year statute of limitations.  This means that the lawsuit must be filed within three years from the date of the accident.  Wrongful death claims must be filed within two years from the date of death. Each of these causes of action is assessed differently.  You could waive your ability to assert one or both of these claims if you fail to timely file the lawsuit. 

Contacting us as soon as practical is most beneficial.  We can handle paperwork and monotonous legal tasks that may add stress during your grieving process.  Passing the ball until you’re ready to participate can lift a burden.  As stated above, there are strict deadlines in personal injury and wrongful death claims.  Let us worry about timeliness so that you may take care of yourself and your family members during this tough time. For a complimentary consultation where you can discuss your specific case with an attorney, call Tocci Law to schedule an appointment (631) 343-7676. We are conveniently located at 353 Veterans Memorial Highway, in Commack, New York.

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