Common Questions about Wrongful Death Cases

What legal rights and remedies are available when a spouse, parent, or child is killed in an accident?

Imagine receiving a telephone call or a knock on the front door from a stranger that looks and sounds somber, you immediately realize that bad news is coming. But what type of bad news? Then the stranger begins to utter the words: I regret to inform you that your spouse, your child, or your parent was killed in an accident. Trauma, disbelief, and anger overcome your emotions. After processing these initial emotions, many people begin to wonder what really happened, could this have been prevented, and how do I seek justice for the dead loved on and the family. This article is intended to give you a brief understanding of legal rights and remedies in the context of civil death actions—or commonly referred to as wrongful death. Each death action, however, is unique and requires a consultation from an experienced wrongful death lawyer like Holland DeKeyzer.

When a person is killed under negligent circumstances the family and the estate have legal rights to investigate the circumstances and seek civil compensatory (i.e. money) damages. Texas law allows two types of death actions: survival claims and wrongful-death actions.

What is a Survival Claim?

The Texas Survival Statute abolished the common law rule that held that a decedent’s personal injury claim ended at death. This means that before the law was enacted the decedent, nor the family, had any legal remedy to seek justice. The statute does not create new legal rights or remedies but allows the decedent’s personal injury rights and remedies survive the death and allows a personal representative of the estate or an heir of the deceased to assert the dead family member’s legal rights. The personal representative is usually an executor or estate and is given some legal authority to recover property on behalf of the estate. A personal representative only occurs when a probate estate is opened in state court.

The other option to pursue a survival claim is through an heir. The most common heir is a child of the decedent, a surviving spouse, the decedent’s parents, or decedent’s siblings. When an heir asserts the survival claim no probate estate is required. However, the heir must establish the heir’s legal right which is referred to as capacity, and this is established under the Texas Estate Code.

What is a Wrongful-Death Action?

The Wrongful-Death Act is a Texas law that creates a legal remedy for surviving spouses, parents, and children of a decedent. Siblings of the decedent cannot bring this type of legal action. Before this statute was enacted the statutory beneficiaries had no legal action to remedy the death of a loved one.

What type of compensation is recoverable under the Texas Survival Statute?

Under Texas law the estate (survival claims) can be compensated for pain and suffering that the decedent experienced before the death. Often defendants will argue that the decedent died on impact and did not experience pain and suffering. However, Texas law states that when the decedent had an awareness of the impending death the estate is entitled to recover pain and suffering money. Money for pain and suffering is often the most disputed damage element and the largest financial recovery for the estate. Having a lawyer that can articulate and discover evidence of the decedent’s pain and suffering is critical. Attorney Holland DeKeyzer has the creativity and compassion needed to do this effectively.

Other recoverable damages include money for medical care costs like emergency surgeries, hospital charges, funeral expenses, and any medical bills that resulted from the accident. Exemplary damages are also allowed under survival claims but have limitations. Exemplary damages are sometimes referred to as punitive damages and are awarded when evidence establishes that the defendant knowingly engaged in dangerous conduct—phrases like “profits over people” often reference conduct that is punishable through exemplary damages. One important damage element that is not allowed under survival claims is termed future earnings.

What type of compensation is recoverable under the Wrongful-Death Statute?

Statutory beneficiaries (children, parents, and surviving spouse) are entitled to seek mental anguish caused by the loss of the life. This differs from the pain and suffering the decedent experienced. Mental anguish refers to emotions like mental trauma, torment, or depression caused by the loss of the deceased loved one. Mental anguish varies greatly and is determined by things like the closeness of the family, the family living arrangements, harmony of the family, and common interest and activities done together. For example, if a father is wrongfully killed and he and his son shared many hobbies together, lived together, and shared many of the same responsibilities in the family household compared to a father and son that do not speak regularly, share no hobbies, and do not live in the same town, the two situations have two very different mental anguish claims and compensatory values. Loss of companionship is another common recoverable damage element which is defined as the positive benefits flowing from the love, comfort, companionship, and society the decedent would have provided but for the death. Loss of companionship also depends on the closeness of the individual relationship between the statutory beneficiary and the decedent.

Another damage element is called pecuniary losses, which includes decedent’s earning capacity, advice, counsel, services, care, maintenance, and support. For a surviving spouse and a minor child, pecuniary losses can be millions of dollars because of the loss of the decedent’s earning capacity. For a simple example, assume the decedent was earning $120,000 annually and had 30 more years of earning capacity, this would calculate to nearly $4 million. Loss of inheritance is another recoverable damage that also depends heavily on the economic activity of the decedent, meaning was the decedent smart with money or how much would the decedent have increased the estate value. Calculating and explaining economic damages requires a skilled trial lawyer such as Holland DeKeyzer who is a former Certified Public Accountant (CPA).

As described above, exemplary damages are recoverable under the wrongful-death claim for a surviving spouse and heirs of the decedent’s body. This means parents cannot recover exemplary under the wrongful-death claims.

Can I recover money if the decedent was covered under Worker’s Compensation?

Texas follows what is known as the exclusive remedy rule. This means in Texas, employers that obtain worker’s compensation insurance are protected from lawsuits from injured workers under most situations. However, if the employer has committed gross negligence the injured employee can file suit. Additionally, if worker’s compensation insurance pays any money to the family, the worker’s compensation insurance can assert a subrogation interest in the lawsuit that was filed against any defendant other than the employer. For example, if a manufacture worker was killed in a truck accident and the family sued the truck company (not the employer) the employer of the decedent must be paid back from any money recovery from the trucking company.

Should I hire a lawyer?

When a family member is killed in an accident it not only turns your world upside down, it also disrupts the economic situation of the family. Because wrongful death claims can be multimillion dollar lawsuits, a lawyer should be consulted immediately. Big businesses know that families are vulnerable during this situation and will do anything to take advantage of that. Attorney Holland DeKeyzer has recovered millions of dollars for families that have lost a loved one. Holland DeKeyzer has the skills to maximize the financial recovery, financial resources to investigate the case, and the compassion to navigate the sensitivity of losing a loved one.

Contact DeKeyzer Law at (713) 904-4004 for a FREE consultation about your rights and options.