Wrongful Death FAQ

What types of damages are recoverable in a wrongful death case?
If I settle my case, is the amount made public?
What is the statute of limitations in a wrongful death case?
Who is entitled to be a wrongful death case?
Are there special rules in medical cases where wrongful death is claimed?
Are there special rules regarding where my case can be filed?
What are the fees if you agree to take my case?
How do I know which law firm will be best for my wrongful death case?
Am I responsible to pay the other side's costs or fees if I lose?
How long have you been handling wrongful death cases?
Do you handle cases against Kaiser?
What if the wrongful death happened at work? Is there someone who can be sued?
I want to sue the City or State, must I follow special rules?
What do you charge for a consultation?
Where can I find out more?
What if I have a miscarriage or an unborn child dies?
Are punitive damages recoverable in wrongful death actions?
What if a person dies before bringing a personal injury lawsuit?
Can a surviving heir bring a wrongful death action if the deceased had no earnings history or was too young to have been employed?
Can surviving heirs sue for the pain and suffering of the deceased person in a wrongful death lawsuit?
Can a brother or sister bring a claim?
Do the heirs have to pay taxes on their recovery?
Do I need an attorney to pursue a wrongful death case?
Can the heirs hire separate attorneys?
How quickly should I contact an attorney?

Q.: What types of damages are recoverable in a wrongful death case?

A: California law provides that the damages recoverable in a wrongful death claim are for economic and non-economic loss. Economic loss damages are for such things as the past and future loss of financial support provided by the decedent before death, funeral and burial expenses, and the dollar value of lost household services. Damages of these types are often based upon the testimony of expert economists. Noneconomic damages are recoverable for the loss of a loved one's companionship, comfort, care, affection, love, moral support, guidance, mentoring and society. There is no fixed standard for deciding the amount of non-economic damages. The facts of each case are different.

Q.: If I settle my case, is the amount made public?

A: There is no legal requirement that wrongful death settlements be public, and if both parties agree they can remain confidential. Some defendants request that a condition of settlement involve a contractual pledge that the client keep the terms of the agreement, such as the amount of the recovery, confidential. We will never authorize such an agreement without your consent.

Q.: What is the statute of limitations in a wrongful death case?

A.: The statute of limitations in California is variable depending upon the nature of the action and the status of the plaintiff and the defendants. For instance, the general statute of limitations for an injury or death in California is two years from the date of the death; yet in the case of a medical malpractice action, the statute of limitations may be as short as one year, and in a case against a government entity, any lawsuit must first be preceded by the filing of a government tort claim, for which there is a 180 day limitations period. Additionally, in certain cases, the statute of limitations may be extended if the injured person is a minor or has a mental disability. Because the statute of limitations will be different depending upon the nature of the case, the identity of the parties, and any special rules which may relate to government defendants, medical malpractice claims, or other special types of cases, we recommend that if you have a case you contact us at once so that we can fully explore all potential theories of wrongful death liability, and make an accurate determination of the appropriate statute of limitations in your case.

Q.: Who is entitled to be a wrongful death case?

A.: In California, Code of Civil Procedure §377.60 identifies all of the persons who are proper parties to bring a wrongful death case. Proper parties include the decedent's surviving spouse, domestic partner, children, and children of pre-deceased children. If there is no surviving children of the deceased, any persons, including the surviving spouse or domestic partner, who would otherwise be entitled to inherent the property of the deceased if he or she died without a will.

Additionally, if they were financially dependent upon the decedent, stepchildren or parents may also have the right to bring a wrongful death claim. Additionally, any minor, whether or not a natural child or a stepchild, who has resided in the home of the decedent for the prior six months and been dependent upon the decedent for at least one-half or more of his or her financial support also has the right to bring a wrongful death claim. For the purposes of this statute, a "domestic partner" means a person who was in a registered domestic partner relationship that was established in accordance with the requirements of the California Family Code.

Q.: Are there special rules in medical cases where wrongful death is claimed?

A.: California has a special statutory scheme that governs the prosecution of all medical malpractice cases. Among other things, the surviving heirs are limited to a maximum of $250,000 for non-economic damages. Non-economic means damages for loss of care, comfort, society, affection and support. In addition, the heirs may seek to recover economic damages, such as lost financial support or the present cash value of lost household services. Special procedural rules are also involved in the prosecution of medical malpractice wrongful death cases, including the requirement that the defendant be notified through the sending of special notification letters pursuant to California Code of Civil Procedure §364. That statute requires that at least 90 days before an action is filed, the defendants be given written notice of the plaintiff's intention to commence a claim. Medical negligence cases seeking damages for wrongful death are complicated, time-intensive, expert intensive and expensive. If you believe you have such a claim, you should call us at once so that we can make an analysis of the potential for recovery in your case.

Q.: Are there special rules regarding where my case can be filed?

A.: Yes. The general rule in California is that a civil action seeking damages for wrongful death must be filed where any of the defendants live, or in the county where the injury causing death occurred. Typically, for State Court venue, the residence of the plaintiff (i.e. the victim's survivors) is not considered. In cases against government entities, the case may be required to be venued in the county of the government entity being sued.

Q.: What are the fees if you agree to take my case?

A.: In all wrongful death cases prosecuted by our office, we are paid on the basis of contingent fees. The precise amount of the contingency will vary from case to case, depending upon the complexity of the matter, the nature of the case, and whether there are any statutory limitations on fees, such as in medical negligence cases. Our firm will advance all costs on your behalf necessary to properly prepare the case, retain experts, conduct discovery, and make the case ready for trial. You do not pay our firm a legal fee unless a recovery is obtained for you either by way of settlement or verdict.

Q.: How do I know which law firm will be best for my wrongful death case?

A.: Walkup, Melodia, Kelly & Schoenberger practices in the area of wrongful death lawsuits. It has set the highest standard for successfully prosecuting cases on behalf of its clients, and is highly experienced in wrongful death litigation. We are currently representing victims in wrongful death claims involving medical negligence, dangerous drugs, premises liability, vehicular negligence, general negligence and government liability. Staff with attorneys having decades of experience, Walkup, Melodia, Kelly & Schoenberger is uniquely suited to serve your best interests when prosecuting your wrongful death lawsuit.

Q.: Am I responsible to pay the other side's costs or fees if I lose?

A.: No. In California, there is no "loser pays" rule. In any wrongful death case, whether it is concluded by settlement or verdict, each side bears its own attorney's fees.

Q.: How long have you been handling wrongful death cases?

A.: Our firm was founded in 1959 by Bruce Walkup. We have been in business for more than 45 years. During that time we have handled literally thousands of wrongful death claims on behalf of thousands of clients. We are the oldest firm in northern California which has been continuously practicing in the personal injury and wrongful death fields. Our attorneys are skilled and hold the highest rating (AV) from Martindale-Hubble.

Q.: Do you handle cases against Kaiser?

A.: Walkup, Melodia, Kelly & Schoenberger has handled as many, if not more, wrongful death cases against Kaiser Permanente, Kaiser Foundation Health Plan and Kaiser Hospitals than any similar firm in northern California. We have special expertise in this area and our team of medical malpractice professionals, including a doctor-lawyer, are among the most successful medical malpractice lawyers in California. For more information, visit our special Kaiser Web site.

Q.: What if the wrongful death happened at work? Is there someone who can be sued?

A.: Where an individual dies at work, typically, the only recourse the heirs have against his or her employer is under the worker's compensation laws. However, if the death was caused by the wrongdoing of someone other than the employer (such as a subcontractor, co-worker, defective product manufacturer, or other person) the heirs of the decedent have a right to bring a claim against wrongdoers other than the employer. In order to determine whether or not liability against someone other than the employer exists, you should contact us as soon as possible so that a timely investigation can be made.

Q.: I want to sue the City or State, must I follow special rules?

A.: Yes. In California, any case against a government entity is subject to the provisions of the California Government Code. The Government Code requires, among other things, that all lawsuits seeking damages for either injury or death brought against a public entity in California (whether a city, state, school district, water district or other government entity) be preceded by the filing of a California government tort claim. The prosecution of wrongful death cases against government entities can be extremely confusing and complex. If you believe you have a claim against a political entity or governmental body, contact our government liability wrongful death specialists at once so that we can evaluate your case and determine if a government claim needs to be filed.

Q.: What do you charge for a consultation?

A.: A consultation to evaluate the merits of a potential case is always free. We do not charge to review medical records or evaluate liability. Under certain circumstances, we will also advance the costs necessary to finance an investigation or to acquire medical records so as to evaluate whether or not a viable case exists. Under the terms of our contingent fee, you pay our firm a legal fee only if we are successful, and only if you receive money by way of settlement or judgment.

Q.: Where can I find out more?

A.: If you have other questions or you wish additional information on one of the topics discussed above, please call one of our wrongful death attorneys 1.888.564.8254 or 1.415.658.9310, or contact us online to arrange for a consultation. We are on-call 7 days a week for your convenience.

Q.: What if I have a miscarriage or an unborn child dies?
A.: In California , the baby must be born alive for its death to be the subject of a wrongful death lawsuit. This is a matter of state law - and in other states, the fetus must only be "viable" (able to live outside the mother's womb). While there may not be grounds to bring a wrongful death suit, the expectant mother may have a personal injury case or emotional distress claim. You should discuss this issue with a skilled attorney.

Q.: Are punitive damages recoverable in wrongful death actions?
A.: Not in the vast majority of California actions - but that rule is different in a number of states. Punitive damages are a financial penalty awarded against the party found legally responsible in a civil lawsuit. They are only awarded in narrow circumstances where, under California law, the defendant has acted with conscious disregard of the rights of the injured person, with malice or intentionally. You should contact a qualified wrongful death lawyer to determine if your case fits within the framework of those cases where punitive damages can be awarded.

Q.: What if a person dies before bringing a personal injury lawsuit?
A: If the person dies of the injuries that would have been the subject of a California injury lawsuit, then the legal heirs may be able to file a wrongful death lawsuit; generally, the decedents pre-death pain and suffering is not recoverable, and dies with the victim.

Q.: Can a surviving heir bring a wrongful death action if the deceased had no earnings history or was too young to have been employed?
A.: California law recognizes the loss of a person means more than the loss of a paycheck. Even if a loved did not provide financial support, in may cases the law recognizes that the survivors have been deprived of the victi9ms love, care, comfort , society, emotional support and consortium. Also, in the case of close family members, or non-working spouses, the family may be compensated for services the deceased person had been providing and would have continued to provide. This includes housekeeping, childrearing and similar activities.

Q.: Can surviving heirs sue for the pain and suffering of the deceased person in a wrongful death lawsuit?
A.: A wrongful death award compensates the survivors for the loss of their loved one. A pain and suffering award normally compensates the injured person. California law does not allow recovery for, or evidence of, the decedents pain and suffering to be included in a wrongful death lawsuit. .others do not.

Q.: Can a brother or sister bring a claim ?

A: Usually not; the number of potential plaintiffs are defined by statute; usually these persons include the surviving spouse and the deceased's children. Under certain circumstances ( such as in the case of financial dependency or the absence of a surviving spouse) surviving parents of an adult child may be proper plaintiffs.

Q.: Do the heirs have to pay taxes on their recovery?

A.: Under current California and Federal law, the recovery of damages by wrongful death plaintiffs are not subject to income taxes.

Q.: Do I need an attorney to pursue a wrongful death case?
A: In almost every wrongful death case, the potential plaintiffs should consult with an attorney. The law is complex as to who is entitled to bring a case and survivors will almost always benefit by representation.

Q.: Can the heirs hire separate attorneys?
A.: Yes, the individual heirs can retain separate attorneys which is sometimes necessary in cases in which the heirs are hostile to each other; however, even in this situation, the heirs should limit their hostility because it will ultimately driving down the entire value of the case.

Q.: How quickly should I contact an attorney?
A.: It is generally a good idea to contact an attorney as soon as possible following a fatal event. This permits counsel to investigate and collect evidence w before memories fade or physical evidence disappears. Witnesses can be interviewed, measurements can be obtained, photographs taken and so on.

The wrongful death attorneys at Walkup, Melodia, Kelly & Schoenberger represent the families of wrongful death victims in California and Nevada, including the cities of San Jose, Sacramento, Oakland, San Francisco, Santa Rosa, Fresno, San Mateo, Walnut Creek, Concord, San Rafael, Napa, Redwood City, Stockton, Modesto, Los Angeles, San Diego, Reno, Las Vegas, Elko, Carson City and Tahoe.