QuestionQUESTION: My mom lost control and rolled her car. Her husband died in the wreck and she had hard injuries (skull fracture, week-long hospitalization, staples etc). Is she entitled to pain and suffering from her own ins. policy? Also, the adjuster asked if she would be filing a "wrongful death" claim against them...what is that?
ANSWER: Hi Christy,
Please accept my sincere empathay for this tragic accident. It must be very rough on your Mom.
Here are the rights in most states, and it depends of course on the individual auto policy that your parents had.
Rights of your Mom to compensation for her own injuries:
#1. Personal Injury Protection (PIP) or Med/Pay no-fault medical payments
#2. PIP wage loss payments (qualifying period is two weeks off work)
#3. Right to sue any entity that caused her to lose control. This cannot be just an animal or an icy corner. It would have to be some kind of roadway defect or failure to erect warning signs. There are other defects that an attorney could discuss with your Mom.
Do not pooh-pooh this inasmuch as there are dozens of such cases successfully brought each year when the drivers had no idea that they did have a right to sue the government. For example, a sharp corner with ice and no warning sign could have been the cause. Or maybe a truck ahead lost part of its unsecured load and your mother had to swerve. In that case, the claim would be versus the truck, and if there is no identity, then her Uninsured Motorist (UIM) coverage will kick in.
#4. She has no other rights to make a claim for her own injuries under the auto policy. Hence, no pain and suffering can be claimed from her own insurance.
Rights of your father's estate and his wife or family for his injuries and death:
#1. This is controlled by the state statute, so you will need an attorney to prosecute this claim. The wrongful death statute will likely give rights to your father's estate and to specified members of his family, with your Mother the primary beneficiary. The legal issue here is what beneficiaries can come forward if your mother is disqualified since she would be the tortfeasor who caused his death. You need an attorney in your state who is familiar with your state wrongful death statutes to answer this question.
#2. The estate claim is for loss of income for the remainder of his working life.
#3. The wrongful death statute will also give a right to sue for any pain and suffering he experienced. Again, the attorney would have to identify the beneficiaries, if your Mom is disqualified since she caused the accident.
Do you need an attorney to collect under the policy? It depends upon the amount in policy limits. If your parents had limits of $50K or less, a blind dog with a note in its mouth could get those limits if there are qualified statutory beneficiaries. Hence, no attorney would be required there.
But if there is to be a big fight over a larger limit, then an attorney would be a good idea. In any event, you DO need an attorney ASAP to sort out the beneficiaries of the statutory wrongful death claim and to ensure that there is no claim versus the government or some other third party.
I trust that my time here has produced some information that has been of value to you, and thus I would respectfully request that you take the time to locate the FEEDBACK FORM on this site and leave some feedback for me.
Best Wishes,
Dr. Settlement, J.D. (Juris Doctor)
http://www.SettlementCentral.Com
---------- FOLLOW-UP ----------
QUESTION: What part of the policy would the wrongful death payout come out of? I know they have 50/100/50, is it one of the 50's that comes into play? Also, since my mom is technically "at fault" for the wreck, would she make a claim on behalf of his estate for her three adult children, his step-children? And if it is for lost income does it matter that he was a retired vet/social security disability income recipient? Thank you so much for all your help. There isn't much info out there for single-car wreck situations.
AnswerHello again, Christy,
Thank you for your nice comments in the feedback. I appreciate that.
If there is no other tortfeasor (i.e. road design, PU truck dropping something, etc.), then the only fund for your father's death is the $50,000 liability coverage.
What the first figure means is the maximum amount of money that will be paid on this policy. The second figure is the most to be paid for all injured in one accident.
As for your Mother, the state statutes will answer that and you need to consult an attorney on that topic. So she may be prohibited from collecting general damages for his death. BUT, as the one who will likely be the personal representative of the estate, she would be the one to bring the action.
As for the lost income, I am not sure of your state wrongful death laws, but if your Dad had lived, then this money would continue to come into his life. Hence, one would take all of his income, less his expenses, and come to a loss of net savings that he would have made each month.
You take the life expectancy times that number of months, and then reduce that figure to present value. That is the net loss to his estate. Does that make sense?
OH, I FORGOT THAT MOST PIP POLICIES DO HAVE A DEATH "BENEFIT" FOR BURIAL EXPENSES UP TO A SPECIFIED AMOUNT IN THE POLICY (usually $2,000 to $5,000).
That is about it, Christy,
Best wishes,
Dr. Settlement, J.D. (Juris Doctor)
www.SettlementCentral.Com
