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What is a "wrongful death" action?

A commonly asked question is whether a personal injury lawsuit can be brought against the alleged wrongdoer if the injured person dies from his (or her) injuries before the suit is commenced. For many decades, the answer was "no," because under the common law of England and then the United States, the claim for damages expired upon the death of the injured person. Realizing the unfairness of this outcome, many state legislatures, including the North Carolina General Assembly, passed statutes specifically to create a legal right to bring a lawsuit even if the injured person had died from the injuries.

In North Carolina, the statute is titled "Death by Wrongful Act of Another." The lawsuit must be based upon a "wrongful act, neglect or default of another" that would, if the injured person had lived, have entitled that person to an action for damages. The wrongful death suit can be brought by the decedent's personal representative, who can be appointed by the probate court or who is empowered to administer the decedent's assets. A lawsuit to recover damages on behalf of a person who died from a fatal asbestos disease is a common example of a wrongful death claim

Damages can be recovered for medical expenses, funeral expenses, the current value of the decedent's services and earnings and of the decedent's society and more. North Carolina' wrongful death statute contains two important provisions: the amounts recovered are not part of the decedent's estate and thus cannot be used to satisfy the claims of the decedent's creditors, and on certain occasions, the jury can award punitive damages.

Any person who has lost a loved one because of an accident or a workplace illness, should consult an attorney experienced in bringing personal injury and wrongful death claims. Such an attorney will be able to assess the chances of the success and the size of any recovery.

Source: North Carolina General Statutes Sec. 28A-18-2, "Death by Wrongful Act of Another," accessed on Feb. 15, 2015

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