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Shapiro & Appleton

Overview of Laws Related to Filing a Wrongful Death Action in North Carolina

In North Carolina, under General Statute § 28A-18-2, a wrongful death action arises when the death of a person is caused by a wrongful act, neglect or fault of another person or company. The North Carolina legislature enacted the Wrongful Death Act to put the legal beneficiaries of the deceased person in the same position financially that they would have been had the victim not died.

Requirements to Establish a Wrongful Death Claim

The legal elements required to prove a case against a defendant whose actions, or inaction, caused your loved one’s death includes:

  • Duty of Care;
  • Breach of Duty;
  • Causation; and
  • Damages

In North Carolina, the basis for liability in a wrongful death claim is that the defendant’s conduct, act or omission was tortious (i.e. wrongful) and in violation of some legal duty or standard of reasonableness.

Examples of incidents that may give rise to a wrongful death claim include the following:

  • Negligent operation of a motor vehicle;
  • Negligent maintenance of property (premises liability);
  • Negligent design or manufacture of products (product liability); and
  • Medical negligence

Regardless of the fact pattern underlying the claim, proving that the conduct, act or omission of the defendant is both the cause in fact (the actual cause) and the “proximate cause” of the person’s death is essential in all North Carolina wrongful death claims. Proximate cause (also called “legal cause”) requires proving, as a matter of policy, that it is appropriate to hold the defendant liable for the victim’s injuries because the injuries were a “foreseeable” result of the defendant’s conduct. There must also be evidence of economic and non-economic damages (e.g, funeral expenses, burial costs, emotional distress, mental anguish, etc.).

Damages that are Recoverable in a North Carolina Wrongful Death Case

The damages that are recoverable in a lawsuit for wrongful death are specified in the Wrongful Death Act include:

  1. Expenses for care, treatment and hospitalization incident to the injury resulting in death;
  2. Compensation for pain and suffering of the decedent (i.e. the person who lost their life in the accident);
  3. The reasonable funeral expenses of the decedent;
  4. Reimbursement for the lost income that would have been generated by the decedent,
  5. Compensation for the loss of services, protection, care and assistance of the decedent, whether voluntary or obligatory, to the persons entitled to the damages recovered;
  6. Compensation for the loss of companionship, comfort, guidance, kindly offices and advice of the decedent to the persons entitled to the damages recovered;

Punitive Damages May Also Be Allowed in a Wrongful Death Claim, But are Capped

The Wrongful Death Act allows the recovery of punitive damages, if the victim could have recovered them if they had survived. Punitive damages are designed to punish the defendant rather than compensate the victim for their harms. A punitive damages award is meant to send a signal to the community, and others who are similarly situated to the defendant, that the conduct causing your loved one's death will not be tolerated. Any punitive damages award must be supported by “clear and convincing proof” of “malice or willful or wanton conduct.” However, a punitive damages award in North Carolina is capped at three times compensatory damages or $250,000, whichever is greater. The only exception to this punitive damages cap is if your loved one was killed in an accident involving a drunk driver, according to N.C.G.S. Section 1D-25.

Proper Party Who Can File a Wrongful Death Claim in North Carolina

The claim for wrongful death may be brought by the “Personal Representative” of the decedent's estate. This can be either the Administrator (if the decedent died without a will) or the Executor/Executrix (if the decedent died with a will naming an Executor).

According to N.C.G.S. § 28A-4-1, the order of people qualified to serve starts with those specified in a will, or if no will exists or nor personal representative is made, then down the following list:
  • Surviving Spouse;
  • Devisee of the testator (Person receiving under a will);
  • Any heir of the decedent (Persons receiving under intestacy);
  • Closest next of kin;
  • Any creditor to whom the decedent became obligated prior to decedent's death; or
  • Any person of good character residing in the county who applies therefor; 

Your loved one’s personal representative or administrator initiates a wrongful death action. Although the representative is likely to be a relative of the decedent, the claim is brought on behalf of the estate. Expenses and fees associated with the wrongful death lawsuit are paid from the estate. A wrongful death lawsuit necessitates opening the estate in the superior court even if probate would not otherwise be required.

If you have questions about who can be named as your loved one's personal representative, contact our law firm today to schedule a free, confidential case review.

Recipients of the Proceeds from a Wrongful Death Settlement or Jury Verdict

The division of the funds from a wrongful death settlement or jury verdict are divided according to North Carolina's intestacy statutes, including sections 29-13, 29-14, 29-15  and 29-16. The funds from a wrongful death are not divided according to provisions of a will.  If the deceased has a will then it will determine the division of assets of the estate but not the wrongful death claim.  The funds from a death claim are divided as if the person who died had no will. 
 
If the decedent was survived by a spouse, they receive:
 
  1. The first $60,000 and then ½ of the remainder if the deceased also has one surviving child; and the child or his/her lineal descendants take the other half.  If the child is deceased at the time but has a child or children then the child/grandchildren take the half and share equally if more than one.
  2. The first $60,000 and then 1/3 of the remainder if the deceased has two or more living children; and the children share equally.  If a child is dead at the time then the grandchild/grandchildren share in the division but only to the extent of what that dead parent would have received.
  3. The first $100,000 and then ½ of the remainder if the deceased has no living children or grandchildren but has one or more parent living; the parent(s) take the other half.
  4. If the deceased has no parent and no lineal descendant then the spouse takes the full amount.
It is very important to understand that if the amount of the funds for disbursement to the next of kin does not exceed $60,000 then the spouse may take all regardless of children or grandchildren who may still be living.  Also, if the decedent left no living descendant, but has living parents, then the spouse may take all of the funds unless funds for disbursement to next of kin exceed $100,000.  
 
Common question - who receives the wrongful death funds if there is no spouse, no children, and no parents?
 
If the decedecent was not survived by a living spouse, child, grandchild, or parents then there are provisions where brothers and/or sisters would take the compensation as next of kin.  This provision is found at NC General Statute section 29-15.  This is extremely rare and I can’t think of an instance where this has occurred in our practice but it does happen on rare occasions.  Again, if you find yourself in this circumstance call us to find out what your status and rights are under the wrongful death provisions of North Carolina law.
 
What if you lived with the decedent who was killed in a car wreck but were never formally married?
 
Unfortunately, you will not have any recourse for wrongful death compensation unless you were married, according to North Carolina law.  This is a harsh result but you must be a relative in order to be deemed a beneficiary.  Even if you lived together for many years and your mate had no contact from his relatives you still have no recourse. 

Why It Makes Sense to File a Wrongful Death Claim

A financial recovery under North Carolina’s Wrongful Death Act can provide a sense of financial security, preserve the family home, and ensure necessary expenses and future costs (e.g., college for the kids) are covered. In some cases, a wrongful death lawsuit can vindicate the death of an individual and help bring closure to the survivors’ loss. And in some cases, a wrongful death lawsuit can punish a seriously negligent defendant, change behavior, and establish new laws and standards so that a needless tragedy will not be repeated. In these cases, the survivors can take comfort that their loved one had a larger purpose in life and did not die in vain.

Statute of Limitations for a Bringing a Wrongful Death Action

According to N.C. Gen. Stat. § 1-53(4), the statute of limitations in North Carolina for a wrongful death claim is two years, which is measured from the date of the victim’s death. For a wrongful death claim to be viable, a lawsuit must brought within this two year window. 

In rare cases, it is possible that a wrongful death claim could be brought more than two years after the victim’s death. For example, it may be possible that a child’s claim for the wrongful death of a parent would be tolled until the child reached the age of majority. In North Carolina, the personal injury statute of limitations is normally three years so keep in mind that the wrongful death statute of limitations is one year shorter than the personal injury statute of limitations.

If you find yourself with questions about some of these provisions, contact one of our North Carolina wrongful death attorneys to find out what your status and rights are under the wrongful death provisions of North Carolina law.

Contact a North Carolina Wrongful Death Attorney Today

The wrongful death claims process can get complicated very quickly. You should focus on the grieving process, not haggling with an insurance adjuster. That is why it makes sense to have experienced counsel on your side. Contact our office today to schedule a free, confidential case review.

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