A loved one dies in an accident that was not their fault. As the heir of your loved one, you hire a lawyer to represent you. This type of action is called a wrongful death claim. In Colorado, this is a very specific claim that few (including most lawyers) completely understand. Because of this confusion, it is also very common that attorneys who do not frequently represent people in such actions commit malpractice, which could cost you plenty. I have seen it in my colleagues over and over again. I am writing this blog to expose the problem but also to help educate my fellow attorneys in the hopes of lessening the future mishandling of these claims.
THE LAW OF WRONGFUL DEATH:
1) Who can bring the claim?
We have covered this topic at length in prior blogs. In a nutshell, when a person dies, there is only one class of survivor who can bring a claim for wrongful death. This class of person is called a lineal heir. For example, a deceased wife's husband is a lineal heir and is entitled to bring the action. If a person dies without a spouse, the person's children (if any) are the lineal heirs. If a person dies without a spouse or children, the deceased person's parents are the lineal heirs.
2) What can they bring a claim for?
While it may seem minimal, the Colorado legislature has limited these actions to include THE HEIR'S losses that resulted from the death of the person. The heir's grief, economic losses, and emotional suffering arising out of the loss of the deceased are the recoverable damages. That is it. While these damages and recoveries can be quite substantial, they cannot include hospital or medical bills that the deceased incurred prior to death.
Lawyers are regularly settling these cases on behalf of lineal heirs and signing agreements on behalf of these heirs which identify the lineal heir as the "personal representative of the estate of" the deceased. It seems harmless, doesn't it? To the contrary, it is quite literally the difference between being the "lineal heir of John Smith" versus being the "Personal Representative of the Estate of John Smith." As in many areas of law, the wording can make all the difference. This may seems like semantics, but the difference between whether a person brings a claim as a "lineal heir" as opposed to "the personal representative of the deceased's estate" can determine whether the heir is sued for fraud as well as the complete value of the hospital and medical charges. This pitfall is completely preventable with experience and proper legal training.
How often does this happen?
For years, I have received settlement documents containing language attempting to confer "personal representative" status to my clients. I have even received checks written to my client trying to misrepresent them as a personal representative. We have made the insurance company change that language every time. I have also seen the releases signed by heirs represented by other firms where the attorney did not require that language be changed. Was it an accident by the insurance company that such language was added to release agreements? In actuality, it was likely intentional. Insurance company officials have confided in me that they regularly try to pass this language off on inexperienced or unsophisticated attorneys, as well as people who represent themselves.
Attorneys who fail to acknowledge and correct this change in the settlement paperwork have no business representing anyone in a wrongful death claim
There are few cases with more pitfalls and long term consequences for a client than a wrongful death settlement. These matters require experienced attorneys and attention to detail.
At Anderson, Hemmat & McQuinn, we are happy to review any release agreement. Remember, we always offer a free initial consultation.