Legal Question in Personal Injury in Oregon

wrongfull death

my 14 year old daughter was a passenger in a vehicle that due to driver running a stop sign was in a collision with a truck and this accident resulted in her death. The driver was seriously injured but has now recovered 90% from his injurys and i assumed that when released from the hospital he would be charged with vehicular manslaughter but recent information is he has not been charged with anything. What can I do this is not fair or just for my daughter.

Asked on 4/04/04, 3:03 am

2 Answers from Attorneys

Sam Hochberg Sam Hochberg & Associates

Re: wrongfull death/Reply from Sam Hochberg

I am SO sorry to hear of your daughter's death. I can't imagine anything much worse than to lose a child. Here, the man who caused this may not even have any serious legal consequences, so I can understand how galling this must feel.

WHEN did this happen? If itís been too long, there may never be a charge. The choice of what to charge, or whether to prosecute at all, is PROSECUTORIAL DISCRETION, and it usually rests entirely in the hands of the District Attorney, in the county where the accident occurred. Charges can be initiated by police, too. I suggest you go in person to the DA, and ask of their plans. We once persuaded a DA to charge a driver with Manslaughter, but it took a YEAR of letters and calls, and a second accident; plus, there was an unusual fact setting. My point is, you may get some benefit on the CRIMINAL side, by hiring a good lawyer for the CIVIL claim.

You DO HAVE RIGHTS in a civil claim, and there may be other parties also responsible. Most Personal Injury and Wrongful Death lawyers will give you a free consultation, and work on a contingent fee basis, for a percentage. If you deal with the insurance company alone, they ROUTINELY take advantage. Work with a lawyer who SPECIALIZES in Personal Injury and Wrongful Death, not one who just handles it, but works in several or more other areas. The lawyer will INVESTIGATE, and perhaps develop more evidence to help the DA. The DA must prove the driver was MORE than negligent; he had to have some intent. I don't know enough facts to tell you how legally appropriate it may be for a criminal charge. It would be morally and ethically appropriate, but that is another matter. If you can't get a good result from the DA, go up one rung, and find the politician responsible for the police agency or DA, such as a city councilperson or county commissioner.

Note, please, that there are IMPORTANT DEADLINES, so I would not delay in talking to a lawyer. Best of luck to you. If we may be of help, please feel free to call or email.


Sam Hochberg

Attorney At Law

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Answered on 4/04/04, 10:05 am
Todd Peterson Peterson Law Offices, PC

Re: wrongfull death

If you do decide to make a civil claim here is some information on wrongful death claims.

Wrongful death cases are different than other claims, in that they involve damages for loss of consortium, society, affection and companionship, which means the loss of having that person around you. The estate has claims for the loss of the earnings capabilities of the victim and funeral and burial expenses as well. For our wrongful death cases we hire experts to support the evidence that is needed in a wrongful death case to get a substantial recovery. For example, we will hire an economist who will write a report on the projected earnings of the victim. The settlement often is a policy limits case, which means the total amount of insurance that the at fault driver was insured for for one accident goes to the estate. Often, in addition to the liability claim, there are under insured claims that can get more money for the estate and sometimes there even may be a possibility of stacking different insurance policies to get the maximum wrongful death settlement.

Wrongful death cases are also different because they are very delicate cases which require careful consideration by the attorney and the insurance companies. They require extensive research, discussion with colleagues, and a great deal of evidence and expert opinion collection. Often a lawsuit is needed to get the insurance company to give the money the estate deserves in a timely fashion. The insurance company will try to hang on to the money as long as possible.

Wrongful death claims are also unique in that the money is given to the estate of the victim and not to the victim themselves. Before the wrongful death case begins, someone must be appointed the personal representative or executor of the estate. This occurs in a separate probate case. We have experience in handling all parts of the wrongful death case.

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Answered on 4/04/04, 11:19 am

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