Can I file the wrongful death suit for being killed by a legally intoxicated driver? 43 Answers as of April 30, 2013

My 25-year old son was killed in a motorcycle accident on 11/11/2012. The boy who turned into my son blew .04 with .08. My son was not married.

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The Law Offices of Mark Wm. Hofgard, Esq.
The Law Offices of Mark Wm. Hofgard, Esq. | Mark William Hofgard
In Arizona the parent has the statutory right to sue for wrongful death of a child. Ariz. Rev. Stat. Ann. 12-612 states: "A. An action for wrongful death shall be brought by and in the name of the surviving husband or wife, child, parent or guardian, or personal representative of the deceased person for and on behalf of the surviving husband or wife, children or parents, or if none of these survive, on behalf of the decedent's estate. B. Either parent may maintain the action for the death of a child, and the guardian may maintain the action for the death of the guardian's ward." This provision is not limited to minor children: "We reject the mall defendants' attempt to limit 12-612(B) to parents of deceased minor children. Our supreme court has identified any of the following as proper parties plaintiff in a wrongful death action: the surviving husband or wife, the personal representative, a parent, or the guardian.
Answer Applies to: Arizona
Replied: 11/23/2012
Lewis B. Kaplan | Lewis B. Kaplan
I am sorry for your loss . The answer to your question is in Illinois you as a parent have a claim under the Wrongful Death Act.
Answer Applies to: Illinois
Replied: 11/22/2012
David K. Kremin & Associates P.C. | David K. Kremin
Wrongful death lawsuits allege that the decedent was killed as a result of the negligence (or other liability) on the part of the defendant, and that the surviving dependents or beneficiaries are entitled to monetary damages as a result of the defendant's conduct. The most common dependents or beneficiaries are surviving spouses and children, and sometimes parents. Actions for personal injury, conscious pain and suffering, or expenses incurred prior to the decedent's death are also brought by the personal representative. The damage awards from these actions belong to the estate and may pass to different parties as directed by the decedent's will. The standard of proof in the United States is typically preponderance of the evidence as opposed to clear and convincing or beyond a reasonable doubt. For this reason it is often easier for a family to seek retribution against someone who kills a family member through tort law (such as a wrongful death lawsuit) than a criminal prosecution. A person may be prosecuted criminally for causing a person's death (whether in the form of murder, manslaughter, criminally negligent homicide, or some other theory) and that person can also be sued civilly in a wrongful death action.
Answer Applies to: Illinois
Replied: 11/22/2012
Tomalas Law Firm
Tomalas Law Firm | Ryan Tomalas
There are many factors to evaluate to determine whether or not you have a claim to make as a result of this tragedy. Not only is it necessary to gather more information about the other driver's intoxication, but many more specifics about the facts of the collision, information about the other driver (for example might he have been working at the time) and a better understanding of the insurance coverage carried by both the other driver and your son that might provide for a source of financial recovery.
Answer Applies to: California
Replied: 11/22/2012
Sedin Begakis & Bish | Mindy Bish
Yes you can. In order to file a wrongful death claim you must be deemed an heir under probate law. Parents are the heirs of their unmarried children.
Answer Applies to: California
Replied: 11/22/2012
    Law Offices of Hal Wright
    Law Offices of Hal Wright | Hal Wright
    Yes you can file a wrongful death suit. I am very sorry for your loss.
    Answer Applies to: California
    Replied: 11/22/2012
    John Russo | John Russo
    Which was it a .04 or .08?
    Answer Applies to: Rhode Island
    Replied: 4/30/2013
    Law Offices of Tanya Gendelman, P.C.
    Law Offices of Tanya Gendelman, P.C. | Tanya Gendelman, Esq.
    Sorry for your loss.
    Answer Applies to: New York
    Replied: 4/30/2013
    Law Offices of Mark West
    Law Offices of Mark West | Mark West
    Yes you can. Did your son have any children? They of course would have a cause of action. California Code of Civil Procedure 377.60 sets forth who are proper claimants to a wrongful death lawsuit. I would be glad to speak with you about the claim and review the process with you as part of my practice is dedicated to wrongful death claims.
    Answer Applies to: California
    Replied: 11/21/2012
    Bozich & Korn | Joseph A. Korn
    If the other drivers negligence resulted in your son's death, then yes you can file a wrongful death suit. However, based on the numbers you put in your question the other driver was not legally intoxicated as .04 is less than .08. However, he probably did receive a ticket because if you get anything over .00 you will receive a ticket, I believe for operating a vehicle while under the influence.
    Answer Applies to: Illinois
    Replied: 11/21/2012
    Law Offices of Steven D. Urban
    Law Offices of Steven D. Urban | Steven D. Urban
    Yes, you can. The Texas Wrongful Death Statute provides that "the surviving spouse, children, and parents of the deceased may bring the action or one or more of those individuals may bring the action for the benefit of all."
    Answer Applies to: Texas
    Replied: 11/21/2012
    Richard E. Damon, PC | Richard E. Damon
    Yes, but first you must petition the probate department of the court to be appointed personal representative of your son's estate.
    Answer Applies to: California
    Replied: 11/21/2012
    Chalat Hatten Koupal & Banker PC
    Chalat Hatten Koupal & Banker PC | Linda Chalat
    My sincere sympathy on the loss of your son. In answer to your question, you do have a wrongful death claim against the driver and perhaps the owner of the vehicle. You would be best served to speak with an attorney about your options. If you wish to have a free consultation today please call our office and ask to speak with Steve McWhirter, an attorney with our firm with extensive experience in wrongful death cases.
    Answer Applies to: Colorado
    Replied: 11/21/2012
    Frank Law Group, P.C.
    Frank Law Group, P.C. | David E. Frank
    Yes, you can. I am so sorry for your loss. You will definitely need a lawyer to assist you. If you are in CA, we can help you, and there is no fee unless and until we recover from the responsible party and/or his insurance carrier.
    Answer Applies to: California
    Replied: 11/21/2012
    David F. Stoddard
    David F. Stoddard | David F. Stoddard
    Yes. You would have to go to probate court and be appointed personal representative of his estate. You should find a personal injury attorney first, and the attorney will help you get appointed personal representative. If he had a will, the will usually names a personal representative. If he had no will, and no surviving adult children (which at age 25 I assume he didn't ) the parents have priority to be appointed personal representative.
    Answer Applies to: South Carolina
    Replied: 11/21/2012
    Graves Law Firm
    Graves Law Firm | Steve Graves
    In Texas parents are recognized wrongful death claimants.
    Answer Applies to: Texas
    Replied: 4/30/2013
    Stephens Gourley & Bywater | David A. Stephens
    In Nevada you can.
    Answer Applies to: Nevada
    Replied: 4/30/2013
    Timiney Law Firm
    Timiney Law Firm | Leigh Anne Timiney
    I am so sorry to hear about the loss of your son. The laws vary from state to state, but in most states, if your son was not married, you would be the person who has standing to bring a wrongful death claim for his death. I would suggest you contact a personal injury attorney in your area and seek a consultation. These types of claims are difficult claims to pursue and handle. They can be time consuming, difficult and emotionally trying. Additionally, unless the individual who caused the accident is an independently wealthy person, you are going to be left with whatever insurance coverage this person has to compensate you. As such, it might not be a large sum of money. A personal injury attorney may be able to find other insurance policies which you could also go after and make claims with so you may be able to get more compensation. Most personal injury attorneys offer free consultations and work on a contingency fee basis, meaning you have no out of pocket attorney fees and the attorney is paid once your case is settled or resolved.
    Answer Applies to: Arizona
    Replied: 11/21/2012
    Gates' Law, PLLC | Thomas E. Gates
    His estate can sue on his behalf.
    Answer Applies to: Washington
    Replied: 4/30/2013
    Maurice L. Abarr  Lawyer, Inc.
    Maurice L. Abarr Lawyer, Inc. | Maurice L. Abarr
    Yes.
    Answer Applies to: California
    Replied: 4/30/2013
    Tenge Law Firm, LLC
    Tenge Law Firm, LLC | J. Todd Tenge
    Yes. As his parent, you would be the person entitled to file the suit. There are often short time limits in which to do so, so you should consult with a qualified injury attorney right away. I am sorry for your loss.
    Answer Applies to: Colorado
    Replied: 11/21/2012
    WEISSMAN LAW FIRM
    WEISSMAN LAW FIRM | I.Donald Weissman
    Yes. A parent has the right to file a wrongful death lawsuit for the death of a child.
    Answer Applies to: California
    Replied: 11/21/2012
    Ferguson & Ferguson
    Ferguson & Ferguson | Randy W. Ferguson
    Normally someone has to be appointed over his estate to bring the wrongful death suit.
    Answer Applies to: Alabama
    Replied: 11/21/2012
    Law Offices of Ronald A. Steinberg & Associates | Ronald A. Steinberg, BA, MA, JD
    The Estate of your son can file a wrongful death suit. The proceeds of the settlement or judgment will have to be run through the Probate Court and distributed according to the law, unless your son had a will.
    Answer Applies to: Michigan
    Replied: 11/21/2012
    Meyer & Kiss, LLC
    Meyer & Kiss, LLC | Louis J. Meyer
    Sorry to hear about your loss. Drunk driving is a terrible thing. As for a wrongful death case, yes you can file one. Step one is to determine if the drunk driver had insurance. If he has insurance, then you should hire an attorney to file a claim with his insurance.
    Answer Applies to: Illinois
    Replied: 11/21/2012
    Frank Law Group, P.C.
    Frank Law Group, P.C. | Brett E. Rosenthal
    As a parent you are an heir under the wrongful death statute.
    Answer Applies to: California
    Replied: 11/21/2012
    Jules D'Alessandro | Jules D'Alessandro
    In order to file a wrongful death suit an estate has to be opened for your son and you can be the administrator of the estate. Whether the person was legally intoxicated raises only a presumption of negligence or recklessness. A person who register a BAC of .04 while not legally intoxicated may still be liable for an accident. This would be a complicated case and requires an experienced personal injury attorney.
    Answer Applies to: Rhode Island
    Replied: 11/21/2012
    Deaver & Deaver, PLLC | Benjamin W. Deaver
    Yes you can. We have to look at all potential family members and have you appointed as administrator of his estate. If an estate has not yet been opened, we can assist with that as well. Once you are appointed administrator of the estate, you can proceed with a cause of action on behalf of the estate.
    Answer Applies to: North Carolina
    Replied: 11/21/2012
    Musilli Brennan Associates PLLC
    Musilli Brennan Associates PLLC | John F Brennan
    It is possible for the next of kin, through the deceased estate, to ring an action against the wrongful party for wrongful death.
    Answer Applies to: Michigan
    Replied: 11/21/2012
    Lapin Law Offices
    Lapin Law Offices | Jeffrey Lapin
    Yes you could file a wrongful death lawsuit against the driver who caused your son's death. A case involving a death may actually have 2 separate claims, which can be brought together in a single lawsuit. First, there is a claim on behalf of the estate. This claim would include your son's medical expenses and conscious pain and suffering, if any. Second, there is a claim for your son's wrongful death, which is a claim that is outside of the estate and is for the benefit of "the widow or widower and next of kin." Next of kin may include children, parents and other relatives. The damages for the wrongful death claim is the "pecuniary loss" suffered by the widow and next of kin. You should consider speaking with an attorney to discuss the case to get more information about the claims and the requirements necessary before a lawsuit can be filed. Most attorneys that handle wrongful death cases offer a free initial consultation so it will not cost you anything to learn more about your rights and options.
    Answer Applies to: Nebraska
    Replied: 11/21/2012
    Matthew D Kaplan LLC
    Matthew D Kaplan LLC | Matthew D Kaplan
    Let me say I am sorry for your loss. In order to file a lawsuit, you will need to open an estate and be named the Personal Representative.
    Answer Applies to: Oregon
    Replied: 11/21/2012
    Rags Beals Seigler Patterson & Gray
    Rags Beals Seigler Patterson & Gray | Ronald D. Reemsnyder
    Because your son was not married at the time of his death, as the parent you may file for his wrongful death. Wrongful death suits have two main parts. Part one is for the full value of the life undiminished by expenses. Proof of these damages often requires expert economic testimony in order to determine future lost income and having the future loss reduced to present cash value. The second part is for any pain and suffering- this part is a claim that belongs to his estate. You should also consider a punitive damages claim because of the intoxication issue. This is a matter of sufficient importance and complexity that an attorney is usually required to maximize the total recovery and to evaluate how any settlement should be structured e.g. through the use of an annuity to maximize the tax free recovery.
    Answer Applies to: Georgia
    Replied: 11/21/2012
    Adler Law Group, LLC
    Adler Law Group, LLC | Lawrence Adler
    You certainly can bring such a suit. An estate will have to be opening and you are likely to be appointed as the administrator. If the other driver is at fault you will have a very good claim. If the driver was intoxicated, you could receive double or triple damages.
    Answer Applies to: Connecticut
    Replied: 11/21/2012
    Paul Whitfield and Associates P.A.
    Paul Whitfield and Associates P.A. | Paul L. Whitfield
    You would have priority as personal representative to open an estate for the purpose of filing a wrongful death action, yes. Can be done in the clerk of superior courts office in the courthouse of the county where he lived.,. I dont know what you mean by he blew a .04 with a .08 if the driver who had been drinking caused the death and your son was not negligent in any way in causing t collision the insurance company will likely pay the claim rather than go to trial with a drinking driver. They don't like to do that since the jury might hurt them badly. You must be absolutely sure your sons driving had no part in the matter. Review the accident report. Talk to the police who investigated. That is why I tell you to make sure there was no possible fault on the part of your son. Insurance companies will explore every possibility to claim your son was partly or mostly at fault. You will not get the benefit of the doubt and you will not expect the insurance company to feel any sense of remorse. For them it is all about money. (don't pay any attention to their advertising. It is all a lie designed to sell insurance) you really need a lawyer who has some experience in handling death claims. you will be at a real disadvantage trying to deal with this yourself. The adjusters are trained to take advantage of you and they will do so, often with nice words that sound helpful.
    Answer Applies to: North Carolina
    Replied: 11/21/2012
    Zimmerman Law Offices, PC | Thomas Zimmerman
    Yes, you have a claim for loss of consortium for the loss of your son. We have successfully litigated several cases like this, and we can help you obtain recovery for your loss.
    Answer Applies to: Illinois
    Replied: 11/21/2012
    Rothstein Law PLLC
    Rothstein Law PLLC | Eric Rothstein
    There is likely a case, especially for pain and suffering.
    Answer Applies to: New York
    Replied: 11/21/2012
    Michigan Auto Injury
    Michigan Auto Injury | Bret A. Schnitzer
    Yes you can file suit for your son. There are both first party PIP survivor benefits available and a lawsuit against the intoxicated driver. Our offices do this kind of work and we would be happy to assist you.
    Answer Applies to: Michigan
    Replied: 11/21/2012
    Fairlie & Lippy, P.C.
    Fairlie & Lippy, P.C. | Christopher A. Bradley, Esq.
    Yes. Our years of experience handling catastrophic injury cases shows us that you should seek out an experienced personal injury lawyer to discuss all of your options. The key question will be who was at fault, and the alcohol consumption will be a factor in answering that question. It may also provide the basis to seek punitive damages.
    Answer Applies to: Pennsylvania
    Replied: 11/21/2012
    Sapiro Gottlieb & Kroll | Lawrence Kroll
    If your son was killed by another driver, you can always file a wrongful death action. There are always the issues of proving liability and the apportionment of fault, as well as the damages for the loss. Damages are made up of the loss of his support and services, possibly the loss of future income, and other things. The fact that the other driver may have been intoxicated is relevant, but the legal limit in NJ is .08.
    Answer Applies to: New Jersey
    Replied: 11/21/2012
    Pinto Coates Kyre & Bowers, PLLC | Jon Ward
    Your son's estate may have a claim for wrongful death. Cases of that nature can be very difficult and complicated, so my strong suggestion is to begin seeking a lawyer as soon as possible. I am very sorry to hear about the loss of your son.
    Answer Applies to: North Carolina
    Replied: 11/21/2012
    Koning & Jilek, P.C.
    Koning & Jilek, P.C. | Jonathan Neal Jilek
    Yes. A wrongful death suit can be filed on behalf of the estate of your son. You should contact our office immediately. There are notice requirements and investigations that need to be completed immediately.
    Answer Applies to: Michigan
    Replied: 11/21/2012
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