In this episode, Josh and Aaron discuss a heavy subject, wrongful death cases. Tune in to learn about the different pieces and types of wrongful death claims. Listen here or read the transcript below. FVF’s Summary Judgment podcast is available wherever you listen to podcasts including Apple Podcasts, Spotify, iHeart Radio, and more.
Intro: Thank you for tuning into Summary Judgment where Austin personal injury attorneys, Josh Fogelman and Aaron Von Flatern of FVF Law discuss the ins, outs and in-betweens of personal injury cases.
Aaron Von Flatern: Welcome back to Summary Judgment. I’m Aaron Von Flatern and I’m here with my law partner, Josh Fogelman. We are the founders of FVF Law, and we are here today talking about a kind of somber subject; wrongful death damages, wrongful death claims. And it’s an important one though, because after someone dies, a lot of times, loved ones have questions about who can bring a claim and what can they make a claim for. So, Josh, I thought we’d just kind of clear up some of the questions there. Why don’t you start with an overview of wrongful death claims? What are they?
Josh Fogelman: Sure. Generally speaking, in Texas, a wrongful death claim is a legal claim that can be brought by specific relatives of the person who was killed by the carelessness of another in order to recover for all of the harms and losses that attach to the loss of that loved one, which obviously, that can be a broad universe of harms and losses, but it’s just the mechanism by which Texas allows people to go and seek a type of recompense or a financial recovery for that just substantial loss. And in Texas, a big question that people have, and one of the questions that we field somewhat frequently are: “Well, who has the right to actually bring the claim to recover those losses?” We hear oftentimes from siblings of people who have been killed, looking for a way to vindicate their rights. And unfortunately, Texas has provided, as a matter of public policy, there’s a piece of legislation that limits the people who are actually legally allowed to bring a wrongful death claim. And in Texas, the only people that are legally allowed to bring a claim for wrongful death are the surviving spouse, surviving children, whether biological or adopted, and surviving parents of the person who was killed.
Aaron Von Flatern: Yeah, and I think one thing to keep in mind is that when a death occurs, it’s kind of like a bomb going off. There are people, neighbors, friends, family members who are hugely affected, tremendous emotional damage. And for whatever reason, the law has just drawn a circle around a specific set of people that are allowed to prosecute the claim, and that’s more of a judicial practicality than anything else. It’s not exactly fair, but that’s the law here in Texas. And as Josh said, it’s specific as to what you can recover depending on what type of claim you’re bringing on the wrongful death group of laws. And on that topic, Josh, can you talk a little bit about the types of wrongful death claims that can be brought?
Josh Fogelman: Sure, and I think a good way to just think about wrongful death law, like any other type of personal injury law, is Texas does a pretty good job of identifying the categories, the very specific categories of harms and losses that if proven, could serve as the basis for a financial recovery. So, for example, if you’re just hurt in a car wreck and there’s no death event, Texas law allows you to recover the full spectrum of your economic losses and your non-economic losses. Well, wrongful death cases are more complicated, of course, because there are just so many deep, intangible losses that come along with the death of a loved one. And also, every circumstance is so completely different. You’ve got, sometimes the one who was killed, wrongfully killed, was the sole wage-earner for the family. They might have been prepared to leave behind an inheritance. There are all sorts of different variables that come into play. But generally speaking, like any other personal injury, you have to think about what the economic losses are, as well as the non-economic losses are. And we often talk about how to categorize the economic and non-economic losses by thinking about what you could account for on a spreadsheet versus what are sort of your more intangible losses that are more difficult to even calculate.
So, some of the specific categories that we talk about in a wrongful death case, that differ a little bit from other types of personal injury cases are things like loss of consortium, which… It’s an attempt by Texas law to recognize the love and support and compassion in society that comes along with the relationship with a family member. That is probably the most difficult of all categories of damages in Texas law to identify and assess a value to. We know that there’s no amount of money that can bring a person back, but this is Texas’ attempt to try to make a person whole through the only real means we as a society know how, which is through monetary compensation. So, loss of consortium is often a large one.
Some of the bigger economic damages are things like the lost earnings we’ve discussed a little bit before, and lost inheritance. If you have a person who was killed wrongfully and they were a wage-earner, or even if they weren’t a wage-earner, but they just had the capacity to earn wages and there was a likelihood that they were going to become a wage-earner for the family in the future, then all of those economic losses, if properly handled, can be accounted for and sought in terms of a financial recovery. Inheritance is also kind of a more complicated element of damages to prove, but that’s another example of a loss that can be recovered. Of course, funeral costs and…
Aaron Von Flatern: And those are examples of some of the things that we can measure, right?
Josh Fogelman: Yeah.
Aaron Von Flatern: And what do you say to someone who’s lost a loved one and they tell you, “There’s no amount of money that can ever bring that person back. There’s no amount of money that I could say my child’s life is worth”? How do you figure out how to settle a claim like that or how much to ask a jury for?
Josh Fogelman: Yeah, well, those are kind of two really interesting and different questions, right? So, oftentimes, when we talk about settling a case, we’re limited… Even though there is really no measure of money that can replace a lost soul, we’re often confined in our ability to go and recover financially for clients just based on the economics of a case. You might have a situation, a horribly, a horribly tragic situation caused by a driver who doesn’t have any insurance, and there is nobody who can be held financially accountable for the wrong that was done to them. That’s one of the many factors that we take into consideration for helping our clients understand what they should expect as far as a recovery is concerned. When we’re talking about if pockets, the amount of a person’s solvency, what they actually have to contribute to pay for the damage that they caused weren’t an issue, there’s no real exact science to coming up with what you would ask a jury for.
Oftentimes, we look at a variety of different factors, like the age of the person who was killed, the nature of the relationship that they had with the person who’s brought the claim, what their quality of life was, a whole variety of different factors. And we try to work with the client, evaluate what the circumstances look like, how egregious the conduct was that resulted in the person’s death, and we talk about what would we feel comfortable as human beings, looking a jury of our peers and colleagues and friends in the eyes, and asking them for to offset this extraordinary loss. So, there’s no exact science and it’s really done on a case-by-case basis.
Aaron Von Flatern: Yeah, and I would say that there’s a mechanism at work here that we’re participating in, and that is, society gets safer one case at a time. There are lessons to be learned from every case. Every time a family comes into our office with one of these tragic events, the one thing I know we can tell ’em is, “Look, we can get you some answers. We can find out more about what happened, why, we can hold people accountable to whatever degree they can be held accountable. And of course, it varies. The Coca-Cola corporation might be a little different than the drunk driver who doesn’t have a thing to his name. But nonetheless, we can ask all the right questions, we can prosecute the claim, we can give people guidance. I always tell people, “We’re not trying to replace the family network you have, the church network you have, all the other things in your life that give you comfort when this bad thing happens. What we promise to do is our jobs. We’re going to do our jobs for your family, get you some answers and get this thing prosecuted to the fullest extent possible. And I know that, Josh, that’s one of the things that you and I have… And you especially, have trained our newer lawyers on. And I think the whole team feels a special duty when we have one of these cases come through to make sure we’re just completely on our A-game the whole time.
Josh Fogelman: Yeah, it’s important. This is oftentimes the most traumatic situation that our clients have gone through or will ever go through. And sometimes what they’re looking for are answers, and our responsibility is to help provide those answers and to help them really start picking up the pieces after a tragedy strikes, and we take that job very seriously. So, one of the things… Kind of shifting back to the law, one of the things that can also be traumatic, one of the situations that we’ve encountered multiple times in the past is, speaking of picking pieces up together, we have a person who’s maybe been involved in a really serious accident, and they ultimately passed away, but they survived for some period of time. And now, we’ve got a family member that comes to us and they say, “I lost my husband,” or “I lost my child. Now, I’ve got all these medical bills because they were kept alive for some period of time. How do we handle that?”
And the answer to that is, “Well… ” And we kind of get into the nuances of the law here, but there are things that can be done to help offset those losses as well, whereas a wrongful death claim really talks about the loss that you as an individual suffer when your loved one is killed. Another type of claim that arises when your loved one is killed is what’s called a survival claim. And that arises in cases where, as I suggested a moment ago, you’ve got an incident that occurs, but there’s not an immediate death and some time passes until the person dies, that person, had they survived, would have had the legal right to seek a recovery for their pain and their suffering, and their own medical bills, and that right survives their death.
And rather than belonging directly to the category of people that we identified before, the parents and the spouses and the children of the deceased, that right actually shifts over to the estate. So, that’s something that shouldn’t be overlooked because the burden on the estate can be substantial for people who have incurred significant medical bills while they were hanging on to their lives. And so, that’s something that we oftentimes need to help with as well. And it can be kind of complicated. Getting an estate set up and going through all of that process can be time-consuming and expensive, but we’re glad to help with that part of it as well.
Aaron Von Flatern: Yeah, it’s definitely a checklist operation. As soon as you have a wrongful death, you’ve got 1,000 things to examine, check off to make sure you get right. And there’s a lot of people to communicate with. A lot of times, you’ve got the wrongful death beneficiaries and the estate can be much larger than that. You might have 100 beneficiaries under the estate, all of whom might have something to say about the case and how it comes out. And so, for us as lawyers, the point is to have good open communication and to make sure we’re using checklists to do everything exactly right.
Josh Fogelman: To that point, one of the things… We don’t like to pressure people to call and we don’t think that it’s necessarily a good idea to make people feel like they have to immediately do something. But what we have found in doing this over the years, is oftentimes, when you have family members who don’t see eye to eye, there can be some discord between them. And what you can find happens is one family member that has a legal right to bring a wrongful death claim, will actually go and hire their own lawyer to the exclusion of another family member who has the same legal rights. And so, to some extent, if you’re watching this and you’re interested in knowing what your legal rights and options are, there are some families, of course, many families, most families, really step up and work together in those situations. In a best situation, that’s great. But if there’s a situation where you are concerned that somebody else in the family, maybe an estranged husband or an estranged wife or something of that nature, might intervene and try to be first in line to make a monetary recovery, that is a situation where you really need to be careful about protecting yourself.
Aaron Von Flatern: Absolutely, absolutely. Well, if you’re listening, I hope you found this helpful. And I’m sure there are 100 more questions that we haven’t answered. You can get more answers on our website at www.fvf.law. You can also find us on Facebook and feel free to reach out to us in any of our platforms. We have lawyers around the clock, 24/7, ready to answer questions about wrongful death. Thanks a lot.