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December 6, 2021

How To File a Wrongful Death Claim

When a person dies due to negligence or the intentional act of another person, a family member or the executor of the deceased’s estate may be entitled to file a wrongful death claim with the help of a lawyer.

What Is a Wrongful Death Claim?

Nevada has specific laws for claims when a death is due to the acts of another person or corporation.  Nevada law defines a “wrongful death” as a death that is “caused by the wrongful act or neglect of another” person or entity. (Nev. Rev. Stat. § 41.085 (2021).) In other words, a wrongful death occurs when one person dies as a result of the legal fault of another person or entity, including by:

  • negligence-based incidents (such as car accidents)
  • medical malpractice, or
  • intentional acts (including crimes).

A wrongful death claim is a type of personal injury claim in which the injured person is no longer available to bring his or her case to court. Instead, someone else must file the lawsuit on the injured person’s behalf in order to establish liability and seek damages.

A Wrongful Death Claim and a Criminal Homicide are Very Different Types of Lawsuits.

In personal injury lawsuits, once the defendant is proved to be liable in a wrongful death case, the plaintiff is entitled to seek financial compensation (“damages”) for the “wrongful death” to be pay to the deceased person’s survivors or estate. In a criminal homicide case (brought by the state, county or city), a conviction can result in jail or prison time, fines paid to the state, probation, and other penalties.

Another big difference: In a criminal case, the accused’s guilt must be established “beyond a reasonable doubt,” which is a very high bar for the prosecution to clear. In a civil lawsuit, the defendant’s liability must be shown only “by a preponderance of the evidence,” meaning it’s more likely than not that the defendant is responsible for the death. While it is possible for a single act to result in criminal charges and a wrongful death claim: A defendant can be sued for wrongful death in civil court while facing criminal charges related to the same death.

Nevada law allows the following parties to file a wrongful death claim in the state’s civil courts:

  • the personal representative (sometimes called the “executor”) of the deceased person’s estate
  • the surviving spouse, domestic partner, or children of the deceased person
  • the parents of the deceased person, if there is no surviving spouse or child
  • the deceased person’s siblings, if there is no surviving spouse, child, or parent, or
  • the next closest family member of the deceased, if there is no surviving spouse, child, parent, or sibling.

Time Limit for Filing a Nevada Wrongful Death Lawsuit

Nevada imposes a time limit, set by a law known as a “statute of limitations,” on filing wrongful death claims. A wrongful death lawsuit must be filed in a Nevada court within two years of the date of the deceased person’s death. (Nev. Rev. Stat. § 11.190(4)(e) (2021).) If a wrongful death claim is not filed within the two-year time limit, the personal representative or surviving family will almost certainly lose the right to file the lawsuit at all.

Damages Are Available in a Nevada Wrongful Death Case:

In a successful Nevada wrongful death lawsuit, the court orders the defendant to pay “damages”—or the plaintiff’s claimed losses—to the deceased person’s survivors or estate.

If the personal representative of the deceased person’s estate files the wrongful death lawsuit, the estate can be awarded damages to compensate for certain types of losses, including:

  • reasonable funeral and burial expenses
  • medical expenses resulting from the deceased person’s final illness or injury, and
  • any punitive damages (intended to penalize the defendant and deter similar behavior) that the deceased person could have received had he or she lived.

If a family member of the deceased person files the wrongful death lawsuit, the family can recover damages to compensate for other types of losses, including:

  • lost wages and benefits the deceased could reasonably have been expected to earn if he or she had lived
  • loss of companionship, comfort, care, and affection of the deceased person
  • survivors’ grief or sorrow, and
  • any pain, suffering, or disfigurement the deceased experienced before death.

How Wrongful Death Lawyers Help With Claims

I have handled numerous wrongful death matters with great success.  The right wrongful death lawyer can improve the plaintiff’s chances of success in a civil suit. The lawyer navigate you through the intricacies and nuances involved with wrongful death cases.  A complaint will likely be required to filed with the appropriate court. The lawyer will provide the factual and legal basis for the lawsuit in the complaint. After filing the complaint, the attorney will serve the defendant with the complaint, providing notice of the suit. A series of nuanced steps will likely continue throughout the lifespan of the civil suit. When big-name insurance companies and large corporations are liable, these cases may involve lengthy court trials that necessitate assistance from an attorney.

Mr. Osborne is a seasoned trial lawyer with more than thirty years of litigation experience representing those injured in car accidents, by medical malpractice, or other forms of negligence. He is a member of the Nevada Justice Association and the Multi-Million Dollar Forum.

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