Jan 27, 2009

Often a question is asked of me, "do I need to hire a lawyer?" My usual response to the average injury case is, "no." A person who is prepared to research our Colorado laws, and who has the time to devote to becoming proficient in injury law, is perfectly suited to handle their own injury claim. The one exception is injuries involving death. A brief summary of Colorado wrongful death laws should explain why this complex area of law requires the assistance of specially trained legal professionals.

The quick answer is lineal heirs. More specifically, if a person dies, and at the time has a surviving spouse, it is that spouse who would be the lineal heir. If a person dies with no spouse, then any living child would be the proper person to sue. If there is no spouse and no children, that person's parents would be the lineal heir. Brothers, sisters, aunts, uncles and cousins are never the lineal heirs and therefore can never bring the wrongful death lawsuit.

The statute of limitations is two years from the date of death. A companion action, called a "survival action," is not going to be addressed in this blog. But understand that a separate action must be brought, if at all, by the estate, within one year of death. If a governmental entity, like an employee of the State, caused the death, separate from your lawsuit deadline, you have the obligation to properly issue governmental notice within 180 days of death. Governmental notices are an entire topic on their own and will be addressed in a future blog.

This is the most complex part of the whole thing. The person bringing the wrongful death claim does not get to claim damages for the pain or suffering of the dead person.Nor is there any value awarded for the loss to society caused by the unfortunate loss of this person's life. Instead, under Colorado law, damages in a wrongful death claim are limited to the net pecuniary (usually income) loss to the person bringing the claim, such as a spouse claiming the income loss due to the death of her husband.Also, grief and emotional upset damages as caused to the grieving heir, and burial expenses incurred, are also allowable damages.Valuing the loss over time, particularly such as income loss of a young husband to his young wife can make the claim monetarily huge.

Most of the time, there are caps on the damages a person can recover in a wrongful death claim. But being creative in how a claim is brought and how the evidence is presented truly "separates the men from the boys." In fact, depending on how the lawyer presents the case, there is a virtual minefield of possible caps. The range of caps is as small as a total award limited to $68,250. If you avoid that cap, and have the right type of case, the next possible cap on non-economic damages (grief and emotional upset) is limited to $341,250. There is, however, a type of wrongful death case, known as a "felonious killing," with no caps on damages whatsoever. A smart attorney will carefully, and within the bounds of the law, classify every wrongful death case into this category, if possible.

When I think about this particular area of the law, the attention to detail needed, the knowledge and careful study that it takes, the proper damages work-up required to do the job correctly, as well as the radical differences in outcome simply based on how one writes the legal suit-papers as well as how the matter proceeds through trial, there are far less than 1% of Colorado lawyers that I would trust to handle this sort of case. In considering your options, I strongly suggest anyone facing such a challenge sit down with a lawyer and take the time to understand why this is probably not something anyone should attempt to do without GOOD counsel.

At Anderson Hemmat, we will take the time necessary to understand you and your case, and regardless of how long that might take, our initial consultation is always free.


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