Can I File a Wrongful Death Lawsuit For a Car Accident?

Key Highlights:

• The claim may be brought if another driver’s negligence was the cause of the death.
• Only the personal representative of the estate may file such a claim in North Carolina.
• The proceeds go to the family members and cannot satisfy pre-death debts. 
• The 1% rule bars the claim, yet there is an exception for drunk driving. 
• The statute of limitations expires two years from the date of death. 

Can I File a Wrongful Death Lawsuit for a Car Accident?

In most cases, yes; North Carolina law authorizes filing a car accident death lawsuit where a death resulted from the negligent or reckless actions of another driver. Yet there are requirements as to who is eligible to sue, what the claim includes, and the filing deadlines. Below are the details of filing a fatal car accident claim in North Carolina following a fatal accident.

I am Robert Tatum, and I am an attorney at Tatum & Atkinson Law Firm. As one of the veteran-owned law firms operating since 2006, our law firm has more than 65 years of experience dealing with wrongful death cases and fatal car accidents in North Carolina. In case you find yourself in the unfortunate event that you must file a lawsuit for a car accident death, we will ensure you get the full amount that you are entitled to under North Carolina law.

When a Fatal Accident Becomes a Wrongful Death Claim

When a wrongful death compensation claim arises, it means that the accident would have resulted in a personal injury claim by the deceased if they were alive. 

Every year, tens of thousands of fatalities occur in motor vehicle accidents on U.S. highways, based on figures provided by the National Highway Traffic Safety Administration. 

The factors are usual suspects such as reckless operation of vehicles, drunk driving, distraction, and truck accidents. They are all caused by negligence.

Who Can File the Lawsuit

Here are conditions under which such a lawsuit can be filed.

The Personal Representative

N.C.G.S. § 28A-18-2 requires that the personal representative of the estate claim must be authorized by law to file; no single person or even a group of individuals acting alone has standing to bring a wrongful death action.

Whom Does the Money Belong To

Though the estate brings the lawsuit, the money goes to the survivors. Under North Carolina’s surviving family rights law, it is distributed under the rules of intestate succession, not through the will, and is generally not subject to claims from the creditors of the deceased, except for limited costs of funeral and medical expenses.

Wrongful Death and Survival Actions

Although these terms sound similar, they answer different questions. 

1. The first action asks what the claims of the deceased, namely, his pre-existing claims (property damage), are, and therefore, these claims are now assets of the deceased’s estate and available to creditors. 
2. The second one asks whether the actions of the defendant led to the death of the victim and accordingly, provides wrongful death compensation for this loss to the family of the victim. 

In North Carolina, in any case, when there is a fatality, the wrongful death law itself provides compensation for pain and suffering, medical expenses, and funerary expenses of the deceased.

Proof of Fault and the 1% Rule

What is the contributory negligence rule regarding this?

The Way Liability Is Proven

It is necessary to prove that a crash was caused by the other driver, and therefore, the basis of the car accident death lawsuit is built using a police report, photos of the scene and vehicles involved, black-box information, and accident reconstruction expert opinion.

North Carolina’s “Contributory Negligence” Doctrine

North Carolina is a “pure contributory negligence jurisdiction”: a fatal car accident claim cannot proceed if the decedent is even 1% at fault. The most important exception is that, in instances where the defendant acted with willfulness or wantonness (e.g., drunk driving), this is generally not an available defense. Virginia operates similarly; a crash in a different jurisdiction doesn’t affect this rule.

What a North Carolina Wrongful Death Case May Obtain Compensation For

In North Carolina, a wrongful death compensation case may seek compensation for

• medical and hospital expenses incurred by the deceased before death
• the victim’s suffering before death
• costs for burial/cremation, and 
• the economic value of the deceased’s loss to his/her family in lost wages, services, protection, society, companionship, and guidance. 

Punitive damages may be recovered for grossly negligent behavior, such as drunk driving. The money comes from the at-fault driver’s liability insurance, and the family’s own underinsured motorist insurance makes up any shortfall.

Consult With a North Carolina Wrongful Death Lawyer at Tatum & Atkinson

If you are wondering if your surviving family rights include a case, it doesn’t have to be decided right away, and you don’t have to decide it alone. Getting an idea about where things stand comes without a cost or any obligation. Tatum & Atkinson has helped North Carolina families since 2006, from our Raleigh office and around the state. 

Firm founder Robert Tatum is a U.S. Army Special Forces veteran. The Heavy Hitters treat wrongful deaths very seriously, especially when they occur due to DUIs, and we understand North Carolina’s “one percent rule” regarding wrongful death cases.

Contact us at (800) 529-0804 for a free consultation. Our firm works on a contingency basis, which means there is no cost to you unless we win your case, and that first phone call is free.

Frequently Asked Questions!

How long do we have to file a wrongful death lawsuit?

Generally speaking, in North Carolina, two years from the time of death is shorter than the statute of limitations on an injury lawsuit. The sooner you file, because evidence disappears and the estate claim needs to be opened up, the better off you are going to be.

Can we still recover if our loved one was partly at fault?

The 1 percent rule in North Carolina may prevent you from recovering any damages if the deceased had some fault whatsoever. However, in a situation where the driver was intoxicated or was acting with reckless disregard, that rule won’t work; hence, you need to know the circumstances of the accident.

Will the case have to go to trial?

The majority of cases are resolved by settlement out of court, but a judge must still approve the settlement, particularly when there are minor children among the surviving family rights beneficiaries. It is through thorough preparation of your case as if you were going to trial that brings about an equitable settlement.

How does insurance pay out in a fatal crash?

The recovery process begins with the liability insurance of the at-fault driver, but when that is not sufficient, underinsured motorist insurance of your own auto policy kicks in, and commercial/trucking policies may give much more.

What does a wrongful death lawyer cost?

Absolutely nothing down. Since these wrongful death lawyer cases are based on contingency, there will be no charge unless there is a settlement, and the initial consultation is free.

About the Author

Robert Tatum

Robert Tatum is the founding attorney at Tatum & Atkinson. He is licensed to practice in all North Carolina state and federal courts and before the U.S. Supreme Court. He earned his J.D. from the University of North Carolina School of Law in 2002 and his B.S. from the University of Virginia in 1999. His practice focuses on personal injury law. Connect with him on LinkedIn.