If you've been blindsided by the wrongful death of your loved one,
please accept my heartfelt condolences.
I am San Jose wrongful death attorney Renée Yvonne Gardner.
I stand ready to listen, if you want to talk about this most painful loss.
WHAT IS A CALIFORNIA WRONGFUL DEATH ACCIDENT?
Generally in California, a wrongful death is where someone was negligent or reckless, which is a substantial factor in the death of another person.
California law says wrongful death is one “caused by the wrongful act or neglect of another.” A wrongful death case can be made via a claim filed with an insurance company, and/or through a lawsuit filed with the court.
WHAT IS WRONGFUL DEATH NEGLIGENCE?
Negligence is a legal word that means to be careless.
Common things people do when they drive negligently include driving while distracted and driving at a speed that is unsafe for the conditions.
When negligence results in the death of another human being, it gives rise to a wrongful death claim.
IS A WORK-RELATED DEATH CONSIDERED A WRONGFUL DEATH?
An employee who dies as a result of a work-related accident is not generally a civil wrongful death case.
Death as a result of an on the job injury, or as a result of an illness caused by the job, it a workers compensation case.
Does Workers Comp Cover Death?
Work-related death is covered by workers comp.
This type of case generally falls under the laws of workers compensation claims called “DEATH BENEFITS”.
I have experience with cases that arise both out of negligence and workers compensation, such as when a worker is in a work truck, on their way to a job site, when a negligent person causes an auto accident which results in the workers death.
Claims for negligence (auto accidents for example) can also cross over into workers compensation cases.
In other words, the two cases can arise at the same time from only one accident.
There are even cases that cross over into three case types - and I have experience in this combination case type:
- wrongful death - negligence and
- workers compensation - death benefits and
- criminal law when the person who passed away was a crime victim.
An example is a case that I handled where a worker who was in a work struck when a person high on drugs crossed over the center median and killed the worker.
In that case, I was was able to fight for and win:
- compensation for more than 10 family members of the deceased worker through a civil case
- compensation for the same clients through the workers compensation appeals board
- being the voice for the victim's family in criminal court, expressing their feelings at the time of sentencing
- an order in criminal court for the wrongdoer to pay money to the victim's family.
WHO CAN MAKE A CALIFORNIA WRONGFUL DEATH CASE?
California law says that only certain, specific people have the right to file a wrongful death lawsuit. “Standing” means the right to file a lawsuit. All the people (called “parties”) with “standing” must be named in one wrongful death lawsuit. This is called the “One Action Rule”. In California, those people may include:
- The decedent's (the person who passed away) surviving spouse, registered domestic partner, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession.
- The decedent's children;
- The decedent's grandchildren, if the deceased person's children are also deceased;
- Effective September 9, 2020, if the decedent's parents would be entitled to bring an action under CCP § 377.60(a), but the decedent's parents are deceased, then the legal guardians of the decedent, if any, may bring an action, as if they were the decedent's parents.
- Stepchildren or other minors who financially depended on the decedent for at least 50% of their financial support.
- If the above people with standing can't file the wrongful death lawsuit, then someone called a “personal representative” can. A “personal representative” can be someone like the executor of the decedent's estate, or another interested party.
HOW CAN I PUNISH THE PERSON WHO KILLED MY LOVED ONE?
The goal of a wrongful death case is to obtain money from the wrongdoer to compensate for the loss. Wrongful death cases are not generally designed to punish a wrongdoer.
This means a wrongful death claimant cannot put the person who killed their loved one in jail. But, under certain circumstances, a wrongful death claimant can obtain damages designed to punish the wrongdoer. These are called “punitive” or “exemplary” damages.
Punitive damages are just what they sound like - they're designed to punish the wrongdoer. Exemplary damages are another word for punitive damages - they're designed to make an example of the wrongdoer. Although punitive damages are not available in a wrongful death case, they are available through a related case often filed with a wrongful death case. It's called a “survival action”.
WHAT IS THE WRONGFUL DEATH “ONE ACTION RULE”?
The California wrongful death case “One Action Rule” allows only one wrongful death claim among all the surviving qualified family members, lodged against all named defendant(s).
All possible people with “standing” must be joined one wrongful death claim and lawsuit.
If a person with standing does not join the one wrongful death claim and/or lawsuit, they will lose their right to file a separate claim and/or lawsuit. If a person with standing does not want to join the wrongful death claim and/or lawsuit, as a plaintiff (a person who is suing), then that person should be named as a defendant (a person being sued) in the same lawsuit.
SHOULD I TALK TO THE INSURANCE COMPANY ABOUT MY CALIFORNIA WRONGFUL DEATH CASE?
Losing your loved one in a wrongful death case is one of the most painful things you will ever endure. This vulnerability creates a perfect opportunity for the insurance company to exploit your lowered defenses and grief.
Do not speak, nor communicate at all, with any insurance company, about your wrongful death case. It can result in irreparable damage to the case because the insurance company is only concerned about protecting themselves.
Despite how nice and understanding they appear, they are not concerned at all about protecting you.
SHOULD I JUST WAIT AND SEE WHAT HAPPENS WITH THE INSURANCE BEFORE I CALL AN ATTORNEY ABOUT MY WRONGFUL DEATH CASE?
Although you generally have two years to file a wrongful death lawsuit, most people file an insurance claim before they file a lawsuit, delaying is not a good idea for three main reasons:
- First, witnesses can move or disappear.
- Second, other evidence can disappear. For example, 911 recordings are routinely destroyed by the police after a very short period of time.
- Third, opportunities for discovery and investigation that may potentially help your case can be lost by the passage of time. This includes witnesses who may be helpful to the case.
SHOULD I HIRE A WRONGFUL DEATH ATTORNEY NOW OR LATER?
A California attorney generally charges the same or similar fee whether you hire them on the date of the accident, or months later. On a wrongful death case, an attorney generally charges what's called a contingency fee. This type of fee is a percentage of whatever the attorney gets for the client. If the attorney does not win, the client does not pay an attorney's fee.
Waiting to hire an attorney cannot help your case. It's best to get the most value out of your attorney - - hire an attorney now. This will let them to work on the case from the beginning. It does not cost you any extra. You can be sure that the insurance company will be working on your wrongful death case from day one, in an effort to protect their own interests. You need someone to work on your case, right from the start, so your rights will also be protected. This has the potential for a better case outcome.
WHY SHOULD I HIRE ATTORNEY RENÉE YVONNE GARDNER FOR MY CALIFORNIA WRONGFUL DEATH CASE?
Nothing compares to losing a loved one because someone else was negligent or reckless.
Your loved one is precious and can never be replaced. Your pain is very real.
You should be compensated for this horrific loss. That's why you need an attorney, but not just any attorney.
Right now, the last thing you want to think about is making a legal case. That's why you need me, Gardner Law's founder, owner and personal injury attorney Renée Yvonne Gardner.
I will work hard to hold the responsible person accountable for their unfair and preventable actions which left you with a devastating loss.
I will take on your burden as if it is my own.