Damages can include both the economic value of the deceased’s life and also the non-economic value. The economic value primarily breaks down to the amount of money the deceased would likely have earned had he or she lived until natural death. The non-economic, or intangible, element considers what the deceased had that made him or her enjoy life. Things like relationships, love, daily activities, getting married, raising a child, and all of the things that make up a life factor into the non-economic part. Since non-economic damages are difficult to equate, a client and his or her attorney will often rely upon a jury to determine the value of the claim.
The second claim known as the estate claim, permits the family of the decedent to recover for the pain and suffering of the decedent, any medical bills incurred before death, funeral expenses, and a few other items. In Georgia, any claim for punitive damages must also be brought by the estate. If the decedent had a will, then the administrator named in the will must bring the estate claim. If the decedent did not have a will, then Georgia’s laws of intestacy will determine who can bring the claim. See O.C.G.A.§ 53-2-1 et seq.
The wrongful death statute sets out strict rules who can bring the claim. If the deceased left a surviving spouse, then the surviving spouse holds the authority to bring the claim-he or she is the only person who can bring it. If the deceased also left surviving children, then the surviving spouse must act as a representative of the children and share with the children any damages award that is received. While the surviving spouse must share the damages award, the spouse can never receive less than one-third of the recovery, no matter how many children there are. If the deceased was divorced, then any surviving children of the deceased would hold the claim jointly.
A technicality can arise if the deceased has children, but one of the decedent’s children predeceased him. In that case, the heirs of the child that predeceased the decedent-i.e., the decedent’s grandchildren through the child that died first-would not receive their parent’s portion. Only when a decedent’s child is an original claimant in a wrongful death action, and then dies during the pendency of the claim, can that claimant’s children share in the recovery.
When there is no surviving spouse and no surviving children, then the administrator or executor of the deceased’s Estate may bring the action. The damages recovered are held for the benefit of the next kin.
The statute limitations is usually two years from the date of the deceased’s death. Time is of the essence when obtaining a lawyer to help with your claim.
If someone is killed because of a motor vehicle accident, the statute of limitations may be “tolled” pending the outcome of a criminal prosecution against the at-fault driver. A “crime” need not involve criminal intent or criminal negligence to fall within the purview of the tolling statute, O.C.G.A. § 9-3-99. A violation of the Uniform Rules of the Road is a misdemeanor, and a misdemeanor falls under O.C.G.A. § 9-3-99. Therefore, in any motor vehicle crash where the at-fault driver has been charged with a crime or traffic violation, the statute of limitation for the wrongful death lawsuit may be tolled from the date of the violation until a final disposition of the traffic charge or for six years, whichever is shorter. The two year period set by the statute of limitation begins after that.