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June 29, 2023
- Car Accident
- Wrongful death
- By Cesar Ornelas
You may be considering legal action if you lost a loved one because of someone’s negligence in Texas. Texas law allows you to file a wrongful death lawsuit if someone’s negligence led to your loved one’s death. If the claim is successful, you could receive compensation for your losses. Keep reading to learn about Texas wrongful death lawsuits, and talk to our Odessa wrongful death attorneys at Cesar Ornelas Injury Law if you want to file a claim.
Texas Wrongful Death Definition
Chapter 71 of the Texas Civil Practice and Remedies Code states that certain family members can file wrongful death lawsuits if the person’s death was due to neglect, carelessness, or unskillfulness. This means you may have a wrongful death claim if your loved one died because of someone’s wrongful act or negligence, such as drunk driving, distracted driving, medical malpractice, defective product, etc.
However, Texas law also states that only certain people can file a wrongful death claim. This group includes the deceased’s surviving spouse, children, and parents. In some situations, an adopted child may file the claim if the adoption was fully completed under the law. An adoptive parent can file a wrongful death claim for the wrongful death of their adopted child. You may file a wrongful death claim as a single action, or the family members can file a joint claim.
Unfortunately, the surviving brothers or sisters of the deceased cannot file a wrongful death lawsuit in Texas, the wrongful death action must be filed by one of the family members listed above.
Difference Between A Texas Wrongful Death Claim And Criminal Case
Keep in mind that a wrongful death action and criminal prosecution are separate matters. Even if the accused is found not guilty of murder or manslaughter in a criminal prosecution, you can still file a wrongful death claim against the defendant successfully. The famous OJ Simpson case is an example – Simpson was found not guilty of murder, but was later found responsible for her death in the wrongful death claim.
The standard of proof for wrongful death in Texas differs from a criminal homicide case. In the homicide case, the prosecutor must show that the person is guilty beyond a reasonable doubt, which is the highest standard of proof.
But in a wrongful death claim, the standard of proof is lower. You must only prove that the defendant was liable for the death by a preponderance of the evidence. This means that it is only necessary to show it is slightly more likely than not that the other party caused your loved one’s death.
What Damages Can You Receive In A Texas Wrongful Death Lawsuit?
Damages in a wrongful death lawsuit are provided to compensate close family members for their many losses when they lose a loved one. The damages you can recover vary, depending on if the plaintiff is a spouse, child, or parent. The most common wrongful death damages are:
- Lost earning capacity
- Mental anguish
- Lost household services
- Lost inheritance
- Lost support, care, guidance, or counsel
- Lost companionship and love
- Decedent’s pain and suffering
In a case of wilful action or gross negligence, the family could recover punitive damages to punish the defendant for what they did. This is supposed to send a message to the public, so such acts do not happen again.
How Much Compensation In A Texas Wrongful Death Case?
Texas has no average settlement for wrongful death cases; every case differs. The amount that can be recovered in a wrongful death lawsuit depends on the deceased’s profession, income, and how much insurance coverage the defendant has. Other factors that can influence the amount depend on the jury’s feelings about the case, the presiding judge, and the type of damages being asked for.
Payouts for Texas wrongful death settlements vary widely, depending on the circumstances of an individual case. Speak to a wrongful death attorney about your potential case to get an idea of what it could be worth. Your attorney will likely seek to secure the policy limit available on the applicable insurance policy or policies. In your case, one of your attorney’s tasks will be to look for every possible source of financial compensation and insurance policy.
What If A Wrongful Death Case In Texas Goes To The Jury?
Many people wonder what the average wrongful death case settles for, but what happens if the case goes to the jury? If that happens, it is possible you could possibly receive a higher amount of compensation, but you are not in control of the outcome. This is why you need a highly experienced litigator handling your claim in case your case requires a trial.
Whether to settle or go to trial is a complex decision that should be guided by your attorney’s advice and counsel. During litigation, your attorney can still engage in settlement negotiations before the matter goes to court. Sometimes, an insurance company will see the strength of your evidence during discovery and make a favorable settlement offer. Your attorney can advise you whether there is a fair offer on the table or not.
If the insurer continues to offer too little or deny liability altogether, you might need to go to trial to fight for the full compensation you deserve. Your wrongful death lawyer will need to convince the jury of who should be liable for your family member’s death, as well as how much you deserve for your tragic loss.
Talk to your attorney in detail about your case, and they will guide you on whether you should take a settlement or go to court. While most cases settle, you should not settle for less compensation than you deserve.
What Factors Affect The Size Of A Wrongful Death Award?
There are several economic and non-economic factors considered when calculating the value of a Texas wrongful death claim:
Economic
- How old the deceased was: People with children or younger people with years of work ahead of them could receive more in a settlement or verdict.
- Burial and funeral costs
- The value of household services: If the person who passed away was a homemaker and raised the children while you worked, you could be compensated well for the loss of household services.
- The number of children: If the victim had dependents, including children or older relatives, this could affect the size of the award.
- Loss of financial support: Loss of monetary support and income if the deceased was the primary breadwinner.
- Medical expenses prior to death: Pain and suffering of the deceased and their medical expenses.
Non-Economic
- The relationship you had with the deceased. For instance, the spouse or child of the deceased will often get more money than another plaintiff. You can receive funds for loss of affection, guidance, moral support, and companionship.
- Loss of benefits, including medical insurance, life insurance, and more.
- Cause of death: A painful, slow death may result in more compensation, and some accidents may involve corporate defendants, which can affect the amount of compensation.
- Loss of consortium: Loss of sexual relations and affection of a close relative, such as a spouse.
How Do You Prove Negligence In A Texas Wrongful Death Claim?
Negligence is the major legal element that must be proven in a Texas wrongful death claim. When another person or entity is negligent, it means they did something they should not do or did not do something they should have done. The elements that must be proven in a wrongful death claim are:
- The defendant owed the deceased a legal duty. For example, all Texas drivers have a legal duty to drive their cars in a safe manner without being intoxicated.
- The legal duty was breached by the defendant. For example, the person was intoxicated, ran a red light, and killed your loved one in a car accident.
- The breath of the duty caused injury. The injury can be physical, such as death, and also can be property damage.
- There have to have been monetary damages, such as loss of inheritance, mental anguish, loss of work, hospital bills, and funeral costs.
Texas Wrongful Death Statute Of Limitations
You must file a wrongful death lawsuit within two years of the person’s death. The rule has limited exceptions, but it is best to assume that you must file the claim within two years. It is best to talk to an Odessa wrongful death attorney as soon as possible to determine if a claim is appropriate.
Contact Our Odessa, TX Wrongful Death Attorney Today
If you want to file a wrongful death claim in Texas, you should be represented by an experienced attorney. Wrongful death lawsuits are often complicated and deal with complex legal issues. Expert witnesses will probably need to be called to offer evidence and determine the amount of potential damages. This is not a simple legal case that you want to handle alone. Please contact our Odessa, TX, wrongful death attorneys at Cesar Ornelas Injury Law for more information.
Originally from Kyle, Texas, Mr. Ornelas is a first-generation college graduate and a first-generation attorney.
Licensed in Texas, Cesar Ornelas’s nationwide practice is entirely contingency fee-based and consists of a wide variety of catastrophic personal injury and death cases. He has represented countless victims of catastrophic accidents across the United States.
