If you have lost a loved one due to another person’s negligence or misconduct, you may be able to file a wrongful death claim against them to obtain compensation for the losses you have endured.
Many people are hesitant to file a claim after losing someone to wrongful death. Some do not want to relive the loss, while others are overwhelmed at the thought of filing a lawsuit. Below, our Mount Pleasant wrongful death lawyer outlines the steps in a wrongful death lawsuit so you can feel better prepared.
How is Wrongful Death Defined in South Carolina?
Not all deaths in South Carolina are considered wrongful deaths, even when they are accidental.
State law defines wrongful death as a death that is caused by the neglect, wrongful act, or default of another person. Wrongful death in the state can be intentional or accidental. Determining if you have a Charleston wrongful death case requires you to determine if the deceased would have been able to file a claim if they had survived the incident that caused their death.
Wrongful death can result from many types of incidents. Some of the most common include car crashes, medical malpractice, and slip and fall accidents.
Which Court to File a Wrongful Death Lawsuit?
Wrongful death cases are separate from any criminal case resulting from the same act. For example, if a driver causes a death while they were impaired, they will face high fines, possible jail time, and other criminal consequences. None of these penalties compensate the family who lost a loved one.
To obtain compensation, family members must file a wrongful death lawsuit.
If your wrongful death case is valued at $7,500 or less, you will file with the Magistrate Court. If your claim is valued at more than $7,500, you will file your case with the South Carolina Circuit Court. The majority of wrongful death claims pursue more than $7,500 in damages, and so, most are filed with the Circuit Court.
What are the Steps in a Wrongful Death Lawsuit?
All Charleston wrongful death cases begin with a complaint filed in court. The complaint details the facts surrounding the person’s death and the reasons for a wrongful death lawsuit. The complaint is also served to the defendant, who then has the opportunity to answer the complaint. After the formal complaint is filed, the remaining steps in a wrongful death lawsuit are as follows:
- Answer: Defendants have 30 days from the date they receive the complaint to respond to it. This formally acknowledges receipt of the complaint but does not necessarily admit liability or fault.
- Collection of evidence: Your attorney will then file requests for evidence and motions of discovery to start building your case. Autopsy and police reports are common types of evidence requested at this stage.
- The insurance process: If the party you are filing a wrongful death claim against has insurance, you may have to file a claim with their insurance company to seek damages. The insurer will conduct a separate investigation and enter into negotiations with your lawyer to determine a fair settlement. Most wrongful death cases are settled at this stage, but there is a minority that must proceed to trial.
- Trial: If your case proceeds to trial, you and the other side will appear in court to make your arguments. You will each tell the judge or jury your side and present evidence that corroborates your case. Settlement negotiations can continue during the trial. If your case is not settled before the judge or jury make a decision, that decision is final and legally binding. The judge or jury will not only make decisions regarding fault, but also the amount of compensation you and your family are entitled to.
How Long Does a Wrongful Death Lawsuit Take?
Wrongful death lawsuits in South Carolina can take anywhere from several months to many years.
The length of time a lawsuit might take depends on several factors, including:
- Facts of the case: Complex legal issues, such as disputes over negligence and multiple parties, can cause wrongful death lawsuits to take longer.
- Length of investigation: When a thorough investigation is required, evidence must be collected, witnesses are interviewed, and expert testimony is obtained. All of these are steps in a wrongful death lawsuit that can cause it to take longer.
- Settlement vs. trial: Settlement negotiations can take time if the insurance company or liable party does not readily accept liability. Still, settlement negotiations typically proceed much faster than a trial.
- Probate: Unlike in other personal injury cases, probate is a factor that can delay wrongful death claims. Only the personal representative of the deceased’s estate can file a wrongful death claim and they may need to be appointed by the probate court before they can initiate a wrongful death claim.
The Statute of Limitations in Wrongful Death Cases
All personal injury lawsuits in South Carolina, including those involving wrongful death, are governed by a statute of limitations. Under state law, the personal representative has just three years from the date of the death to file a claim. Three years sounds like a long time to file a lawsuit, but it is not. Before filing your claim, your damages must be accurately valued, an investigation must be conducted, and evidence must be collected.
It is important to speak to a Mount Pleasant wrongful death lawyer as quickly as possible after losing someone you love. An attorney can ensure your claim is filed on time so you and your family obtain the compensation you are entitled to as quickly as possible.
Call Our Wrongful Death Lawyer in Mount Pleasant for a Free Consultation
After losing someone you love due to another person’s misconduct or carelessness, you need legal help. At Rikard & Protopapas, our Mount Pleasant wrongful death lawyer can provide it and help you navigate the steps involved so it is as easy as possible for you and your family. Contact us today or fill out our online form to schedule a free consultation and to learn more about how we can help.