Archive for December, 2013

Wrongful Death Litigation in Missouri

Wednesday, December 18th, 2013

Wrongful death arises when a person dies suddenly due to another person’s negligence or recklessness. Customarily by law, only surviving family members of the deceased are given standing to file a wrongful death suit. Typically, in order to file a wrongful death claim, the elements that must first be established include, the death of a person, proof that the death was caused by another person’s negligence, family member(s) suffering as a result of the death, and the appointment of a personal representative for the deceased.

In a wrongful death lawsuit, the primary measure of damages is determined by the pecuniary or financial injury imposed on the decedent’s family. Therefore, survivors of wrongful death victims are eligible to file a claim for damages, which may include, but not limited to, expenses for medical, hospital, funeral and burial needs, as well as compensation for pain and suffering. Other losses suffered by the decedent’s family may also be recoverable, such as, loss of financial support, service, and companionship, the prospect of inheritance, and parental guidance and upbringing.

The preeminent issue focused upon in wrongful death litigation is how the decedent’s survivors will be compensated for their losses. In order to ascertain financial losses of the surviving family members, considerations such as age, condition of the deceased, character, earning capacity, health and intelligence, life expectancy, as well as the circumstances of family members are commonly examined.

If the deceased was the breadwinner of the family or a steady wage earner, his or her loss of income and parental guidance will be the major elements considered by the jury for monetary recovery.  Additionally, the jury may also take into account the decedent’s income at the time of death, or if he/she is unemployed, the last known earnings, along with potential future earnings.

The amount of damages awarded in a wrongful death lawsuit is usually determined by the weight of evidence presented at trial.  At times, a jury may adjust the size of the award based on the circumstances governed by evidence. For example, the award may be reduced if the decedent had poor earnings or had extravagant spending habits, even though he/she may have supported a large family or had great potential to advance in his/her career. Likewise, a jobless decedent may be awarded lost earnings if his/her average earnings, while still employed, can be presented to the jury as evidence. In addition to this, survivors of the deceased may also produce expert witnesses at trial to formulate and substantiate the value of the decedent to his family. Lastly, in calculating the final amount of the award, punitive damages may also be assessed and included in cases where serious or malicious wrongdoing caused the death of the victim, to prevent or deter others from engaging in similar acts.

By law there is a statute of limitations in place that provides a time limit within which a claim for wrongful death must be filed. However, there are certain limited circumstances where a claim can be filed after the expiration of the statute. This primarily occurs when the actual cause of death is unknown until after the statue of limitations has expired.

In all cases of wrongful death, no matter what the cause may be, it is imperative to be diligent in the preparation of a wrongful death suit. To prove the liability on the part of the defendant, it is absolutely necessary for the plaintiff to preserve all evidence that may support the claim, to examine the circumstances encompassing the wrongful death and the details of the incident itself, and to ensure the lawsuit is filed timely, within the time period set forth by the statute of limitations.

If you are seeking to pursue a wrongful death claim in Missouri, contact the Missouri wrongful death attorneys of Hubbard & Kurtz, LLP today at (816) 472-HOPE (4673), for more information on how to move forward with the legal process.  Our law firm has extensive experience and knowledge with wrongful death lawsuits, and can handle your case with the skill, care and diligence required for a successful outcome!

When Pursuing a Personal Injury Claim, Why Patience and Time is Often Required

Saturday, December 7th, 2013

Every accident involves a unique set of circumstances, and likely presents different issues to be resolved.  As a result, depending on the complexities involved, some cases will be settled more quickly than others. However, with a majority of personal injury cases, it is not uncommon for proceedings to take anywhere from one to three years, or more, to resolve.  It is understandable for those who experience a lengthier process to encounter moments of frustration, but it is extremely important not to rush any decision-making and agree on the first settlement offer made by the insurance company. Typically, the first settlement offered is rarely the best.  When combined together, the multiple facets of a personal injury claim help to explain why such cases can be unexpectedly time-consuming, requiring more patience than originally anticipated. The following is a brief overview suggesting why the aforementioned is generally in fact the case:

Evaluating the Injury. Depending on the nature of injuries sustained with a personal injury claim, it may take more time than anticipated to determine the full extent of injuries resulting from an accident. Generally speaking, until a patient’s medical condition has stabilized, doctors are often unable to give opinions about the seriousness of an injury.  In cases where serious injuries are involved, it may even take a year or more after the accident before a doctor can confirm the extent of the injuries, and whether or not they are permanent. Regarding long-term care and full recovery, it is crucial to take the necessary amount of time to thoroughly evaluate all injuries incurred.  With personal injury claims, there will only be one opportunity to prove the nature and extent to of harm sustained. Once a settlement offer is agreed upon, or a verdict is delivered at trial, no backtracking is allowed, the decision is final.

Patience with the Process. If you have wisely chosen an experienced personal injury attorney to handle your case, he or she will know how to keep it moving along through the legal system.  In the initial stages of your case, attorneys for all parties involved usually meet to discuss scheduling and to set deadlines for various stages throughout the process. Typically, a personal injury case will include these steps:

  • Discovery. The period for discovery usually lasts for at least six months or more. This time allows each side to discover everything they can about the other party’s case.   

  • Depositions. During a deposition, you’ll be asked to answer questions about the case under oath, while a court reporter records everything that is stated during questioning.  

  • Pre-Trial Motions. It is not uncommon for attorneys on either side to file various motions to narrow the issues presented at trial. For example, motions can be made to object to the admission of specific evidence, or to ask that the case be dismissed if there is not enough evidence to support the claim.

  • Mediation and Settlement. Oftentimes, before trial is commenced, mediation, settlement conferences, or arbitration may be required. In mediation, a neutral mediator reviews and examines the issues and evidence with both the parties in an effort to guide them towards a settlement agreement.  With arbitration, an arbitrator takes on the role of a judge, listens to the evidence presented, and decides the issues in the case.
  • Trial. If a case is unable to establish resolution out of court, it goes to trial where a jury decides the amount of damages based on the issues and evidence presented in court.  It can take up to six months or so to get a trial date scheduled on the court’s docket. The trial itself may take anywhere from two days to two weeks, and longer. Once a verdict has been reached, there may be further appeals and motions made by attorney’s for both parties.

The Waiting Game. As mentioned previously, you will have greater bargaining power with an insurance company if you do not rush into a settlement agreement. On the other hand, it is also important to consider the expense and time litigation incurs. You may also run the risk of taking a chance with a jury that may or may not favor your case. All things considered, your best strategy when pursuing a personal injury claim is to contact an experienced attorney in your area that will be able to provide you with an estimate regarding the length of time it may take to successfully resolve your case.

If you are involved in a Missouri personal injury claim and seeking legal advice, contact the law firm of Hubbard & Kurtz at (816) 472-HOPE (4673). Our experienced staff of attorneys will assist you with any legal questions or concerns you have that are associated with an auto accident claim.

Wrongful Death Lawsuits in Missouri: The Basics

Wednesday, December 4th, 2013

Unfortunately, accidents and negligent actions causing serious injuries or death can take place in a variety of ways.  Oftentimes, these situations can be incredibly traumatic and unexpected, especially when it involves the loss of a loved one due to the negligence of another person or entity. Under such circumstances, survivors of the deceased may be able to file a wrongful death lawsuit in order to compensate for their loss. The following is a basic overview of wrongful death actions:

What is a “wrongful death”? Generally speaking, wrongful death occurs when someone other than the deceased causes the loss of life as a result of negligence or due to preventable action, either intentional or unintentional.  Essentially, a wrongful death claim is a certain type of personal injury lawsuit. The range of accidents or actions that can lead to a wrongful death suit is broad, but the commonality of all such claims is the loss of life caused by another person or entity’s actions or lack thereof.  Wrongful death claims typically include:

  • Motor vehicle accident. The deceased could have been a driver or passenger in a vehicle, motorcyclist, pedestrian, or even a bicyclist that was hit by an automobile.
  • Workplace accident. This includes any incident that occurred on employment premises, or resulted from a workplace environment.
  • Product liability. This occurs when injury or illness is caused by a defect in a product.
  • Toxic tort. This cause of action is brought when exposure to a dangerous or toxic substance results in fatal injury.
  • Premises liability. Generally, this takes place when either a residential or commercial site is the cause of or leads to an injury.
  • Medical malpractice. This occurs when a healthcare provider or entity causes an error or a negligent act takes place resulting in injury.
  • Elder abuse. Such a claim is usually the result of negligence and injury inflicted upon an elder by a medical provider or caregiver.

Financial Compensation. There are three types of damages that are recoverable in wrongful death lawsuits—economic, non-economic, and punitive. Economic damages encompass the financial impact death has on a survivor, and typically includes medical expenses, loss of wages or benefits, as well as funeral costs for the deceased. Non-economic damages provide compensation for a survivor’s pain and suffering, and general loss of companionship, love, and care.  Lastly, punitive damages are essentially designed to punish a responsible party, and may not always be awarded. Typically, such damages are determined case by case.

Legal Advice and Representation. One very important aspect of the process to consider is time. It is commonly an issue that many families face when pursuing a wrongful death claim. If a lawsuit is not brought within the legal time frame, a family may lose the window of opportunity to file. Each State has its own statute of limitations for wrongful death claims, granting a specific time period for families to pursue damages against the party(s) that caused the death. If a claim is not brought in time, the statute will automatically bar the lawsuit from proceeding. In addition to meeting the statutory time requirement, there are other legal issues that may be relevant to a particular case. For these reasons, it is advisable that families dealing with a potential wrongful death claim speak to an experienced legal professional that will be able to inform and guide them through the process. Each case requires a careful assessment and review of the circumstances to determine the compensation that may be available.

If you or a loved one is interested in filing a wrongful death suit, or you simply have questions regarding wrongful death law in the state of Missouri, call (816) 472-HOPE (4673) to contact our experienced Missouri wrongful death attorneys at the law offices of Hubbard & Kurtz today!