Wrongful death actions can be very complicated, as the wrongful acts of several parties may have contributed to an individual’s death. Pre-trial, out of court settlements are common in wrongful death cases, because most defendants want to avoid the publicity of having caused a death. When such out-of-court settlements occur, a reduction of the wrongful death damages award issued by a judge or jury will also occur. Thus, if a plaintiff settles a claim against one defendant, the plaintiff’s recovery from any other defendant is thereby reduced. Additionally, the plaintiff’s release of one defendant frees that defendant from liability to contribute to any other defendant, and waives his/her claim for any contribution from co-defendants. In other words, the released defendant is out of the action, and the remaining defendant(s) will pay no more than their comparative share of the culpable conduct as found by the jury. While all of this information may seem overwhelming, an attorney experienced in wrongful death law can help make sense of legal jargon and complexities and guide you through the complicated legal maze of a wrongful death lawsuit.
As a procedural matter, the court takes any evidence of a payment to or settlement with another party, which is offered by a defendant in mitigation of that defendant’s own liability for damages. The court then deducts the proper amount, if any, from the jury’s award. Thus, the defendant in a wrongful death action has the burden of proving that a plaintiff has settled with another party. In the end, if the defendant is able to prove the existence of such a payment, then the court must reduce the award by the appropriate amount.
The law governing wrongful death actions also provides for the reduction of a damages award in proportion to any payments to the plaintiff from “collateral sources.” A collateral source may include insurance (except life insurance), Social Security, workers’ compensation, or employee benefit programs. However, a reduction in the damages award is appropriate in only two situations: 1) in an action for medical malpractice; and, 2) an action by a public employee against his employer or fellow worker for personal injury or wrongful death.
In a medical malpractice action, if the court finds there was a payment from a collateral source, then the court must reduce the damages award by the amount of the payment minus the amount the plaintiff paid in premiums for such benefits in the two years before the action accrued, minus the projected future cost to the plaintiff of maintaining his or her benefits.
Similarly, a reduction in the damages awarded may occur in a wrongful death and/or personal injury action by a public employee against a public employer, who is subject to indemnification when the injury occurs while the plaintiff was acting within the scope of his employment. In such a case, the court must reduce the award for payments from collateral sources provided or paid for by the public employer. This includes paid sick leave, medical benefits, death benefits, dependent benefits, a disability retirement allowance, and Social Security (except those benefits provided under title XVIII of the Social Security Act). However, these collateral sources do not include those entitled by law to a lien against the plaintiff’s recovery. If the court finds such a payment from a collateral source, then the court must reduce the award by that amount minus the amount the public employee contributed for that benefit.
If you believe that you have a wrongful death claim based on the loss of a loved one, contact an experienced attorney today. A knowledgeable and skillful lawyer can work with you to help alleviate at least some of the loss experienced at this tragic time in your life.