If you have recently lost a loved one in an accident caused by someone else’s negligence, you may be wondering about the wrongful death claims process in Illinois. A wrongful death claim may be able to help you seek justice from the party who caused your loved one’s death and give you financial security so you can determine how to proceed with the next chapter in your life.
The wrongful death claims process can be complicated, especially for people who are already dealing with grief and who have had their life upended because of someone else’s negligence. An experienced wrongful death lawyer with Rapoport Weisberg & Sims P.C. can help you navigate the process, handle the legal paperwork, negotiate for fair compensation on your behalf, and advise you on steps to take. Contact us today for a free case review to discuss your situation and legal options.
How Wrongful Death Claims Work
When someone dies because of another party’s negligence, the surviving family members may be able to obtain compensation for the wrongful acts that caused their loved one’s death through a wrongful death claim. Wrongful death claims can help surviving family members recover compensation to pay for the loss of income and services their loved one brought, as well as their grief and sorrow.
In Illinois, the representative of the estate is responsible for filing any wrongful death lawsuit. However, the Illinois Wrongful Death Act states that any award received through a wrongful death claim is for the “exclusive benefit” of the surviving spouse and next of kin.
When Someone Can Bring a Wrongful Death Claim
To bring a wrongful death claim, you must be able to establish certain legal elements to show you qualify to bring the case and the defendant owes you compensation. Most wrongful death claims are based on the legal concept of negligence. For this type of legal claim, you must prove the following legal elements by the preponderance of the evidence:
Legal Duty
You must establish that the defendant owed your loved one a legal duty. The legal duty could be based on the law, such as in obeying traffic laws when driving. It could be based on the terms of a contract, such as providing adequate care in a nursing home. Sometimes the legal duty is based on the relationship between the parties, such as when there is a doctor/patient responsibility.
Absent other express duties, everyone has a legal duty to act in a reasonable manner that does not harm others.
Breach of Duty
Next, you must show how the defendant did not do what they were supposed to, based on the legal duty they owed your loved one. How did they breach their legal duty? Breach of duty will depend on the type of accident your loved one died in and the circumstances surrounding it. Some examples of breach of duty include:
- A motorist was speeding, texting and driving, driving while impaired, or breaking traffic laws when they caused a car accident
- A trucking company hired an inexperienced driver, encouraged drivers to violate hours of service rules, or failed to maintain their fleet, which resulted in a truck accident
- A property owner failed to maintain their premises in a safe condition or fix a hazard that led to a premises liability accident
- A doctor or other healthcare provider deviated from the standard of care, causing medical malpractice and your loved one’s death
- A product manufacturer created a defective product, resulting in a product liability incident
Causation
It is not enough to show your loved one died in an accident. Instead, you must be able to show the accident caused your loved one’s death. The death must have been the direct result of the defendant’s breach of duty. This generally requires showing that the death would not have occurred absent the defendant’s actions (or lack of actions).
Damages
Finally, you must show your loved one’s death caused damages for which the court can award the surviving family. The Illinois Wrongful Death Act allows you to recover compensation for economic losses the family suffered because of their loved one’s death, including the following:
- Loss of income
- Loss of inheritance
- Funeral and burial expenses
- Loss of services
Additionally, the family can receive benefits for their non-financial losses, such as the following:
- Loss of society
- Loss of consortium
- Instruction, mortal training, and superintendence of education of surviving children
- Grief and sorrow
Steps Involved in the Wrongful Death Claim Process
It may take time to develop a wrongful death claim. The following steps may be involved in your wrongful death claim.
Investigation
You will want to try to uncover how your loved one’s death occurred. This may only be possible through an in-depth investigation. An investigation will reveal how the accident occurred and whether you have grounds for a wrongful death claim.
An investigation may involve the following components:
- Interviewing witnesses who saw the accident in person or factors that contributed to it
- Gathering evidence to determine how the accident occurred, including pictures or videos of the accident scene, statements from parties, accident reports, and more
- Determining who is responsible for the accident
- Evaluating the full extent of economic and non-economic losses your family experienced to determine a fair amount of compensation to demand
- Hiring expert witnesses, as necessary, to assist with establishing the legal elements of a wrongful death claim
Demand Package
Once your lawyer has determined that you have a viable claim and has calculated the full extent of your damages, they can begin crafting a personalized demand package. This package may include the following information:
- An explanation of the accident, how it occurred, and why the defendant is responsible for it
- A demand for a certain amount of compensation you will accept to settle the case
- A statement that if the demand is not met, you plan to sue the defendant
- Supplementary documentation or evidence to support the assertions in your demand letter
Out-of-Court-Negotiation
The defendant or insurance company may not agree to the settlement amount the family demands. But this may start the process of negotiation. The insurance company may offer a lower amount of compensation. Your lawyer may respond by counter-offering a different amount. There may be several rounds of negotiation before the parties agree to a particular settlement.
Filing a Wrongful Death Lawsuit
If the parties do not reach an agreement to settle the case, your family may decide to move forward by filing a wrongful death lawsuit. This may be the only way to pursue adequate financial recovery if the defendant has not agreed to a reasonable settlement.
A wrongful death lawsuit is initiated when you file a complaint in the appropriate court. The complaint sets out the basic facts surrounding the case and why the defendant is legally responsible for your loved one’s death. It also states why the court is the appropriate forum for the case.
Along with the complaint, you will also need a summons that states a lawsuit has been filed against the defendant and notifies them of their timeline to respond to the lawsuit to avoid a default judgment. These documents must be legally served on the defendant(s).
Litigation
Litigation is the formal process of resolving a legal dispute through the court system. The litigation process may involve multiple tasks. In a wrongful death case, it may be necessary to open a probate case and have the personal representative appointed so they have the legal right to pursue the claim.
Litigation may also involve various motions and requests submitted to the court, such as a motion for default judgment or a motion for summary judgment.
Throughout the litigation process, the parties can continue to try to resolve their case through a settlement. If a settlement cannot be reached, the parties will continue with litigation and toward trial.
Discovery
Discovery is the formal process of obtaining information in preparation for a trial. There are several tools the parties may use for discovery, including:
- Subpoenas to banks, employers, or other third parties that request information or someone to appear at a deposition
- Depositions in which parties or witnesses are interviewed under oath and asked questions about the case
- Interrogatories in which the other party must provide answers to a series of questions given to them
- Requests for the production of documents in which a party asks the opposing party to provide certain documents related to the case
- Requests for admissions in which the opposing party must plainly admit or deny written allegations are often used to narrow the issues that need to be litigated
Settlement Negotiations
The court may require the parties to attend settlement conferences or mediation in a last-ditch effort to settle the case before trial. If the parties happen to reach a settlement, they ask the court to dismiss the case and the plaintiff receives a certain amount of compensation in exchange for dismissing their claims against the defendant.
Trial
If the case does not settle, it proceeds to trial. As the plaintiff, you will have the burden of proof of showing that the defendant’s negligence caused your loved one’s death. Your lawyer will present your case by calling witnesses, examining them, and admitting evidence into the record. The defendant’s attorney then has an opportunity to cross-examine witnesses. They can also call their own witnesses and present evidence.
At the conclusion of the trial, the judge or jury determines if the defendant is responsible for the wrongful death. If they find the defendant is responsible, they will then determine an appropriate amount of compensation to award you.
Time Limit to File a Wrongful Death Claim
The statute of limitations is the time limit you have to file your case. If this time limit expires and you have not filed a lawsuit, the court can later dismiss any subsequent lawsuit you attempt to file as time-barred. In that case, you would lose your opportunity to recover compensation through the courts.
In Illinois, you generally have two years after your loved one’s death to file a wrongful death lawsuit, but there are some exceptions to this time limit which can increase or decrease the amount of time you have to file your lawsuit. An experienced Illinois wrongful death lawyer can review the circumstance surrounding your case and explain the time limit you have to file your claim.
Wrongful Death Claims FAQs
Who Can File a Wrongful Death Lawsuit in Illinois?
In Illinois, only the personal representative of a decedent’s estate has the legal right to file a wrongful death case. This is in contrast to other states that often allow the surviving spouse or other surviving family member to file the case. If there is no personal representative, the court can appoint a special administrator specifically for this purpose.
Although the personal representative files the claim, any proceeds recovered for a wrongful death case are exclusively for the benefit of the surviving spouse and next of kin. In the event there is no surviving spouse or next of kin, parties who furnished medical services or paid for the administration of the estate can receive compensation through a wrongful death claim, up to certain limits.
Who Can Be Sued for Wrongful Death?
The party who is responsible for your loved one’s death can potentially be sued for wrongful death. This applies whether the party is a natural person, business, or government entity. Depending on the circumstances surrounding your case, a wrongful death claim may be filed against one or more of the following parties:
- Negligent motorists or truck drivers
- Trucking companies
- Businesses
- Employers
- Governmental agencies
- Property owners
- Product manufacturers of defective products
An experienced Illinois wrongful death lawyer can review your case and determine the party or parties responsible for your loved one’s death.
How Can I Prove My Wrongful Death Case?
Unfortunately, insurance companies and defendants often try to deny responsibility for accidents that result in death. This is often because they know they may be on the hook for significant financial damages and they may want to distance themselves from the bad publicity involving such tragic events. This means that you may have to file an insurance claim or lawsuit to recover fair compensation.
Establishing your right to compensation will rely on being able to prove the elements of your case. You will likely need strong evidence to support your case, such as:
- Death certificate
- Police or accident reports
- Medical records
- Witness statements
- Photos or videos of the accident scene
- Testimony and/or reports from expert witnesses
- Employment records, tax returns, economic expert witness testimony, and other evidence of financial losses
What Is My Wrongful Death Case Worth?
Ultimately, a wrongful death claim can provide you and your family with the financial security you will need to move toward your next chapter of life. The potential value of your case will depend on facts very specific to your individual case, including the following:
- The age and life expectancy of your loved one
- Your loved one’s income and expected earning capacity
- Your relationship with your loved one
- The defendant’s actions
- The insurance coverage available
- How many people were financially dependent on your loved one
- The economic and non-economic losses your family suffered
How Can a Wrongful Death Lawyer Help Me?
A wrongful death lawyer can assist with all legal aspects of your claim, including:
- Investigating the accident that caused your loved one’s death
- Gathering strong evidence to support your claim
- Preserving evidence before it is lost or destroyed
- Handling claim paperwork and managing case deadlines
- Interviewing witnesses
- Hiring expert witnesses, when necessary
- Negotiating for fair compensation on your behalf
Additionally, a wrongful death lawyer can provide essential emotional support during this critical time in your life. They can answer any questions you have and ensure your rights are protected throughout the process.
Contact a Compassionate Wrongful Death Lawyer for Your Free Case Consultation
If you recently lost a loved one, our compassionate legal team at Rapoport Weisberg & Sims P.C. is here to help. We know the grief and sorrow you are experiencing can be overwhelming. Recovering fair compensation from the party responsible for your loved one’s death should not be. Let our wrongful death lawyers fight for the justice and accountability you deserve. Contact us today to learn more.
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