My step-dad fell at work and was killed. Negligence on construction companys or hospitial (where he worked) part. We don't know what to go for or what to go after? How much money do we ask for? Should we settle out of court?
2 Answers from Attorneys
Re: Neglignce/wrongful death
You may have several lawsuits available to the family.
You cannot go directly against the employer in a civil suit because the exclusive remedy is the receipt of workers compensation benefits. But you may be able to get the employer to contribute to the overall settlement of the wrongful death claim if you sue the construction company and then the construction company turns around and sues the employer (hospital) for their portion of the negligence. That is called "Lambertson" contribution.
What amount you should go for depends on the status of the heirs at the time of death. If the deceased had dependents (wife or young kids), they are entitled to ongoing dependency benefits under workers comp coverage and may be entitled to recover significant damages against the construction company, the hospital or both. If there are no dependents, then the estate is entitled to a one time lump sum payment from workers comp.
If there is a civil negligence suit against the construction company, the heirs must appoint a trustee to commence the lawsuit against the construction company. The damages in a wrongful death case are limited to "pecuniary" damages. Pecuniary damages include all economic losses due to the death plus "loss of consortium" damages for the loss of aid, society, advice and guidance the deceased would have provided to each heir during their lifetime.
Proof of these types of damages usually requires hiring an economic expert to testify to the economic damages that are attributable to the death. The loss of consortium damages are personal in nature and depends on the closeness of the relationship between the deceased and each of the heirs.
The damages in this case will be subtantial. The claim must be handled very carefully. The combination of a wrongful death claim and workers compensation claim related to the death is one of the most complicated settlement procedures involved in the law. You should not try to settle this type of case yourself. You should seek out a law firm who has expertise in both wrongful death and workers compensation, because there are subrogation provisions in the workers compensation statute that require you to provide notice of any pending setlement and pay back the workers comp insurer when you settle the wrongful death claim. Often, the amount that needs to be paid back can be litigated or negotiated to a much lower sum, leaving more money for the heirs of the deceased.
The attorneys in our firm have handled several of these wrongful death cases. We also have three lawyers in office who handle workers comp cases on a regular basis. One of these lawyers is a former workers compensation settlement Judge and is well versed in the interplay between workers compensation and wrongful death claims.
If you or any of the heirs have questions, we would be glad to provide the heirs with a free consultation regarding ths matter.
Jeffrey D. Thill
Re: Neglignce/wrongful death
Do not settle without a lawyer. Wrongful death, medical malpractice, and workers compensation are extremely complex areas. A lawyer will know how to maximize any settlement for your benefit.
Feel free to call me about this.