The valuing of a wrongful death case can be an extremely difficult matter. As in other areas, the law provides easily understood rules for determining those damages. The actual implementation of those rules in practice, however, can be difficult and judges and juries are left with rather broad discretion in making those decisions. This article addresses those general rules which serve as the framework from which such determinations are made. This web site includes additional materials which will be of assistance in determining the value of your particular case and include an article entitled "Examples of Jury Verdicts in Selected Wrongful Death Cases" and a "Wrongful Death Case Valuation Worksheet" to be used to gather information to be sent to your attorney. Always keep in mind that the actual determination of case value, settlement strategy, and the decision to resolve a case by settlement or proceed to trial should be made only in conjunction with a licensed, trained attorney with experience in this area.
The general rule in California in wrongful death cases is that one is entitled to recover both economic and non-economic damages which are suffered as a result of the loss of a loved one.1 Economic damages in a wrongful death case include an award for the financial contributions which the decedent would have made to his wife, children and/or parents had he or she survived. It also includes the recovery for funeral services in memory of the decedent and for burial costs. Non-economic damages include loss of love, companionship, comfort, affection, society, solace or moral support as well as loss of enjoyment of sexual relations.
In the usual case, the chief element of damage is the loss of economic support which the decedent would have provided for a spouse, children and/or parents. It includes the present value of the earnings the decedent would have contributed to the family during the period of his or her life expectancy.2
A plaintiff is also entitled to recover the financial value of the loss of the various services which the decedent would have otherwise provided. These include services in the home such as house upkeep and/or maintenance, house repair, gardening, auto maintenance, driving, laundry, shopping, cooking, and the like. Also to be included is the value of gifts which the decedent would likely have given to the plaintiffs. In addition, the plaintiffs are entitled to recover for those benefits which they would have realized in savings of time, money and effort had the decedent lived. The measure of this damage is oftentimes equal to the amount which one would have to pay to hire others to perform those duties.
In determining the amount of support which the decedent would have provided to the plaintiffs, the trier of fact is to consider:
- The age of the decedent and each heir at the time of death;
- The health of the decedent and each heir immediately prior to death;
- The respective life expectancies of the decedent and each heir;
- Whether the decedent was kindly, affectionate or otherwise;
- The disposition of the deceased to contribute financially to the support of the heirs,
- The earnings capacity of the decedent;
- The deceased's habits of industry and thrift; and,
- Any other facts shown by the evidence which indicate what benefits each heir might reasonably have expected to receive from the deceased had he or she lived.
The plaintiffs are also entitled to recover a reasonable amount for the non-economic damages they have suffered. These awards should include compensation for:
- Loss of love;
- Loss of companionship;
- Loss of comfort;
- Loss of affection;
- Loss of society;
- Loss of solace;
- Loss of moral support;
- Loss of protection;
- Loss of advice; and,
- Loss of training.
The calculation of what one is entitled to recover in a wrongful death case is never easy. It requires attention to detail and an experienced attorney's knowledge of the law. One can, however, estimate recoverable losses. A number of articles on this web site include illustrations taken from actual cases which may be helpful in understanding how such damages work out in real life. Should you be interested in reviewing those materials, they can be found on the Articles page under "Examples of Jury Verdicts in Selected Personal Injury Cases" and "Examples of Jury Verdicts in Selected Wrongful Death Cases." We have also included a "Personal Injury Case Valuation Worksheet" and a "Wrongful Death Case Valuation Worksheet" in the Forms section of this web site for your use in gathering information to be sent to your attorney. These worksheets should be used only in conjunction with your legal counsel to ensure that the information is accurate and remains properly privileged.
- Generally, the right to recover for such losses is limited to the "heirs" at law of the deceased. These would include the husband, wife, children, and in some cases the parents of the individual who has died.
- The remarriage of a spouse following death of a husband or wife is irrelevant to such a determination inasmuch as the amount of damage is to be determined based upon the date of death and what was expected at that point. Whether or not a remarriage "mitigates" damages is considered speculative and therefore irrelevant.