New York law is somewhat counter-intuitive when it comes to monetary recoveries for the wrongful death of a loved one. Most people think that the pain and suffering endured by the survivors of a relative lost in an accident is a compensable claim, but the survivors’ pain and suffering is not even considered.
New York law basically allows only 2 types of compensation (other than actual medical bills and funeral costs) for the death of an individual. Awards are made for the pain and suffering of the decedent before he or she died, and the economic loss of the survivors who were dependent upon the decedent for support. Punitive damages designed to punish outrageous conduct are rarely allowed. This somewhat callous law is relatively common in other jurisdictions as well. Economic loss has been held to include the value of services performed by the decedent that now must be done by others, and also the value of the counsel and advice the decent provided to survivors.
It should be clear that the death of a child, while amongst the worst losses imaginable, generally results in the lowest recoveries in death cases. This is because there is no economic loss component at all. The award available is only for the child’s pain and suffering prior to death, not for the pain and suffering of the parents, siblings and other family members. The death of a working parent with minor children often results in the largest wrongful death awards.
Claims for wrongful death are covered by a two year statute of limitations from the date of death, which is a year shorter than ordinary negligence actions in New York. Only a personal representative (Executor per a Will or Administrator if there is no Will,) of the victim’s estate can file a wrongful death claim. Claims are generally made on behalf of both the estate and the surviving heirs. Any claims for the pain and suffering of the decedent pass to the beneficiaries named in the Will or pursuant to the laws if intestacy if there is no Will. Payments for “economic loss” pass directly to the beneficiaries outside of the estate. Allocating payments between pain and suffering and economic loss can result in significantly different outcomes and generally requires court approval.
When faced with the death of a loved one as the result of an accident, medical malpractice or some other wrongdoing, it is important to retain an experienced lawyer who regularly handles serious injury and death cases. The process of pursuing a wrongful death claim can be stressful for survivors, but a skilled and compassionate attorney will help you work through the emotional distress and give sound legal advice in the process. Proving the case often requires significant resources and coordination with experts. KGG’s more than a dozen lawyers plus support staff regularly work with investigators, doctors, engineers, and other professionals to help maximize the recovery for those injured or killed as the result of others negligence.
KGG has recovered millions of dollars for accident victims and their families. With offices in Rockland County NY and Bergen County NJ, you can call us toll free at (800)-660-7843 or fill out the form on our website at www.kgglaw.com to schedule a free accident case consultation.
Call toll free at 800-660-7843 or fi ll out the form on the KGG website at www.kgglaw.com.
By Barry Kantrowitz, Esq,
Senior Partner, Kantrowitz, Goldhamer & Graifman, P.C.