The length of time it takes for a wrongful death lawsuit suit to resolve varies substantially between personal injury cases and depends on the type of case (automobile, medical malpractice, construction, etc.), the number of defendants, the insurance carriers, and the likelihood of prevailing at trial. If a wrongful death case is straightforward, it may be resolved before a personal injury lawsuit is even filed eliminating the need to go to trial.
However, if a defendant contests liability, your attorney will need to file a complaint against every defendant, exchange and review important documents, interview and depose numerous witnesses, and attend settlement and pre-trial conference with the judge before the case is tried. This process may take months or even longer to resolve. Defendants and their insurance companies typically fight these cases in court, which can also slow the case down.
In this Article
Wrongful Death Overview
A wrongful death occurs when someone’s death is caused by another person’s or entity’s negligence. If your loved one suffered a wrongful death, you may be entitled to compensation from the person responsible. Wrongful death claims typically consist of two or more causes of action.
First, under the Wrongful Death Act (740 ILCS 180/0.01, et al.), loved ones may be entitled to damages for:
Second, under the Survival Act (755 ILCS 5/27-6), beneficiaries of the deceased estate may sue for the deceased own damages, including:
Pain and suffering
Loss of a normal life
In some instances, the spouse may file their own direct lawsuit to recover loss of consortium damages, including:
Loss of support
Loss of love and affection
Examples of Wrongful Death Cases
Wrongful death cases arise whenever a defendant acted negligently and that negligence caused a person’s death. They can include automobile crashes, workplace accidents, defective products, toxic chemical exposure, medical malpractice, and neglect. Some common wrongful death claims involving automobiles are discussed below.
Distracted driving is an increasing safety hazard for automobile drivers. With the rise of smart phone use and texting, Illinois has increased its traffic fines for distracted driving. If a driver causes an accident because they are distracted, they are negligent, and anybody injured in the accident is entitled to damages.
Additionally, any distracted driving citation can be used against the driver as it shows statutory negligence. Statutory negligence can be a powerful tool for plaintiffs because it makes it easier to prove liability against the defendant. If your loved one is killed by a distracted driver, you should contact your attorney immediately so that they can retain critical evidence such as dashcam and surveillance videos, cell phone logs, and automobile computer logs before it is destroyed by the defendant or their insurer.
Pedestrian and Cycling Accidents
Pedestrians have the right of way in Illinois, and motorists who negligently fail to yield to pedestrians are liable for any injuries they cause. According to the Illinois Department of Transportation, in 2019 alone, over 3,000 cyclists and pedestrians were struck by an automobile. Many of these accidents involve deaths and catastrophic injuries that require months of care and rehabilitation.
To ensure that you receive the compensation you are entitled to, we recommend contacting a law firm with experienced Chicago wrongful death attorneys if your loved one if killed by a motorist while cycling or walking.
In Illinois, almost one third of fatal automobile accidents involve the consumption of alcohol. In addition to recovering for damages against the drunk driver, your Illinois wrongful death attorney may also be able to file additional claims against any bar or restaurant that served the driver alcohol. These claims are covered under the Illinois Dram Shop Act (235 ILCS 5/6-21), which allows individuals injured or killed due to someone’s intoxication to recover against both the driver and the entity that allowed them to become intoxicated. While there are statutory limits on what an individual may recover under a dram shop claim, any money recovered is separate from what they may also recover from the drunk driver.
Hit and Runs
Unfortunately, hit and run drivers are notoriously difficult to track down. If you are struck in a hit and run accident, you should immediately write down everything you can about the vehicle, including the full or partial license plate, vehicle make and model, and vehicle color. You should also obtain the contact information of anybody who witnessed the accident. Additionally, surveillance videos of nearby establishments may have picked up additional information about the culprit. Your wrongful death attorneys can contact investigators to attempt to track down the criminal and recover damages from them and their insurance company to compensate you for your personal injury.
Semi-Truck and Tractor Trailers
Accidents involving tractor trailers can be particularly complex since truck drivers must obtain special licenses and trucking companies must follow federal transportation regulations. Additionally, the company a defendant works for may also be liable for their trucker’s negligence under the legal theory of vicarious liability. Trucking companies may also contract with other businesses to perform maintenance on their vehicles and to transport their goods. Given the complexities involved in identifying the correct defendants to sue, you should speak with your attorneys before filing suit in a trucking accident.
How to Prove a Wrongful Death Claim
In most instances, the plaintiff must show a defendant was negligent in order to prevail on a wrongful death claim. To prove negligence, the plaintiff must show
the defendant owed the deceased person a duty of care,
the defendant breached that duty of care,
the defendant caused the deceased person’s death, and
the plaintiff suffered damages.
Damages include emotional injuries (pain and suffering, grief, and loss of affection) as well as financial injuries (lost wages, loss of services, and medical bills).
Defendants usually hire wrongful death attorneys that are paid by their insurance companies, so it is essential that you contact your attorney before you even file a lawsuit to ensure you have the best opportunity to recover what you deserve for your loved one’s death.
How do you file a wrongful death suit?
Filing a wrongful death claim involves multiple legal steps, and retaining an attorney from an experienced wrongful death law firm will improve your chances of a resolution in your favor. Before even filing a lawsuit, your attorney will investigate the accident to obtain critical evidence, including medical records and bills, surveillance footage, witness statements, consulting expert opinions, accident data, and so forth to get a sense of the wrongful death case.
Then, your attorney will issue a demand letter to the defendant’s insurance company or employer to detailing your claims to try to resolve the case before filing a lawsuit. If the insurance company refuses to cooperate, then your attorney will need to file a lawsuit.
Before filing an Illinois wrongful death claim, you must first open an estate in Illinois Probate Court. Wrongful death claims may be brought by the “personal representative” of the deceased person under the Wrongful Death Act. If the deceased has a valid will that names an executor, then the executor is considered the personal representative. If the deceased person does not have a will or their will is considered invalid, then the court appoints an administrator that is typically nominated by an interested party.
Once an estate is opened, you should then file your complaint for damages against the defendant in Illinois Circuit Court. Your complaint must allege the facts essential to state your claim for wrongful death, or it will be dismissed by the court.
Once your complaint is filed, you will then need to serve the defendants with the complaint and a summons to appear in court. To serve the defendants, you must take a copy of the complaint and two copies of the summons to the sheriff’s office to have a sheriff’s deputy effectuate service. If the sheriff’s deputies are unable to serve the defendants, you will then need to pay for a licensed investigator to serve the defendants.
Your wrongful death attorney will have the experience to write a well-argued complaint and the contact information for investigators to effectuate service. Remember that insurance companies and their attorneys will use any inadvertently damaging admissions you made in the complaint against you, so you should contact your attorney before filing your lawsuit to ensure you receive the full amount of compensation you deserve in your case.
How do you file and prosecute a wrongful death lawsuit?
While the vast majority of wrongful death cases settle before they go to trial, the process can be time consuming, and defendant’s insurance companies also like to drag cases out in an attempt to avoid paying plaintiffs what they are owed.
A wrongful death case is initiated by filing a complaint for damages with the Illinois Circuit Court. After the defendant answers the complaint, the parties then exchange written requests for documents and information in a process called written discovery.
Defendants are obligated to turn over most documents related to the case, even if they are incriminating. These documents may include internal business emails and communications, computer logs of the occurrence, maintenance records, and even incident reports accounting what they claim occurred.
After written discovery is completed, the parties have an opportunity to ask witnesses questions, under oath, at depositions. Depending on the complexity of the case, a party may only need to take a few depositions or as many as several dozen to ensure they understand the facts.
Once these depositions are completed, the parties may also disclose expert witness consultants to offer scientific opinions about how the accident may have occurred as well as the extent of damages. Once expert witness discovery is completed, the court may conduct one or more settlement conferences before the case is tried before a jury.
Defendants’ attorneys paid by insurance companies to oppose you are every stage in the process, regardless of how strong your case is. To avoid inadvertently getting your case dismissed or your damages drastically reduced, you should contact your attorney well before you file a lawsuit so that you have someone on your side with the experience and legal acumen to ensure you receive the compensation you deserve.
What damages are awarded in a wrongful death lawsuit?
Most wrongful death claims contain two counts. The first count is for wrongful death is brought by the deceased’s surviving spouse and next of kin. This count seeks damages for
The second count is for survival and is brought by the administrator of the deceased’s estate on behalf of the estate’s beneficiaries under the Illinois Survival Act (755 ILCS 5/27-6). The second count seeks damages for the deceased’s
pain and suffering,
medical bills, and
In some instances, a spouse may file a claim for loss of consortium seeking damages for love and companionship and loss of household services.
How are wrongful death settlements paid out?
Typically, the surviving spouse and “next of kin” are entitled to recover damages under the Wrongful Death Act, including fair and just compensation for pecuniary injuries such as grief, sorrow, and mental suffering. (740 ILSC 180/2).
Beneficiaries of the deceased person’s estate may also recover for the deceased person’s pain and suffering, lost wages, related medical bills, and funeral expenses under the Illinois Survival Act. (755 ILCS 5/27-6). Spouses may also file their own separate lawsuits to recover for loss of consortium associated with loss of love and companionship, loss of care and guidance, and loss of household services.
One issue that may arise during settlement is who is considered “next of kin.” The Illinois Probate Act (755 ILCS 5/9-1, et al.) creates a payment distribution regimen so that the closest family members receive settlement proceeds. If the deceased does not have any close family members, then more distant family members may recover. The order of distribution in Illinois is:
Spouse and children
Brothers and sisters
Nieces and nephews
For example, if the deceased has one spouse and two children, the spouse will receive 50% of any settlement and the two children will receive 25% each. If the deceased has no spouse and never had children, then his parents will receive 50% each.
Do I have to pay taxes on a wrongful death settlement?
Compensation in personal injury cases, including wrongful death lawsuits, are typically not taxable in Illinois. However, some very specific types of recovery may be taxable. These include punitive damages and interest payments. You should consult with your attorney before making any decisions on tax payments.
Get Help from The Kryder Law Group, LLC
Don’t delay. If you have lost a loved one and think you may have a wrongful death case, contact The Kryder Law Group, LLC today for a free case evaluation. Our law firm has the experienced Chicago wrongful death lawyers who can help you every step of the way. We will guide you through the entire process and inform you of all important details you should be aware of like statute of limitations for you to file your lawsuit. We will take the legal burden off your hands so you can grieve the loss of your loved one. Call today for your free consultation.