Can I File a Wrongful Death Claim if a Loved One Was Killed in a Drunk Driving Accident?
Key Highlights:
- Wrongful death lawsuit cases are civil claims and are independent from any DUI accident criminal cases.
- The representative of the deceased’s estate alone may file the wrongful death claim under North Carolina law.
- Drunk driving accident typically bars North Carolina’s tough 1% contributory negligence defense.
- There is no cap on punitive damages against drunk drivers in North Carolina.
- The statute of limitations for filing is two years after the date of death.
Can I File a Wrongful Death Claim if a Loved One Was Killed in a Drunk Driving Accident?
Yes. Under North Carolina law, if your loved one dies in a fatal car accident caused by a drunk driver, you have the right to bring a civil wrongful death claim; an action totally separate from any criminal charges that might be brought against the drunk driver. The civil wrongful death lawsuit is the way that families get justice financially.
The loss of a loved one due to a drunk driving accident that leads to a fatality can be the worst thing that could happen, but you don’t have to go through it on your own. I am Robert Tatum, founding lawyer of Tatum & Atkinson Law Firm.
Our veteran-owned law firm has over 65 years of experience handling cases of wrongful death claims in North Carolina. With me as your North Carolina wrongful death lawyer, I will know how to file for punitive damages.
Wrongful Death Claims in North Carolina
In simple terms, a wrongful death claim is filed under N.C.G.S. § 28A-18-2 if a person died as a result of negligence or a wrongful act committed by another party; a fatal drunk driving crash is a perfect example of that.
It should be noted that the claim does not belong to any specific relative; it is filed on behalf of the decedent’s estate, and the funds are awarded to the family. The aim of such a claim is compensation for losses.
Wrongful Death Claim and Criminal Case
Following a fatal car accident or DUI accident, two different proceedings may arise out of the same collision.
Different Parties With Different Purposes
One proceeding is started by the state for punishment of the guilty driver (jail time, fines, driver’s license suspension); the second one is started by the family for financial compensation. Punishment is one thing while compensation is something else. Conviction in the former case will help your cause in the latter, but you do not have to prove it.
Why You Don’t Have to Wait for the Outcome of the Criminal Trial
The civil suit works according to its own timetable and does not have to wait for the completion of the criminal trial, since the burden of proof is lighter, in that all the family needs to prove is the greater probability that the driver is responsible rather than proving guilt beyond a reasonable doubt. In addition, waiting for the criminal trial could mean that the evidence needed in the wrongful death lawsuit becomes unavailable.
Who May Bring the Suit
It is only the personal representative of the deceased person’s estate who has the right to bring the lawsuit. In case there is no personal representative specified in the will, then the family may petition the court to name one, usually someone like the surviving spouse, parent, or an adult child of the deceased.
How Intoxicated Drivers Alter the Fault Question
This is where fatal drunk driving crash cases stand in contrast to the usual accident, usually in the family’s favor.
The 1% Rule and Why It Often Cannot Help an Intoxicated Driver
North Carolina has pure contributory negligence; a plaintiff who is deemed 1% at fault usually cannot recover anything, one of the more extreme standards in America. However, the behavior of a driver in a drunk driving accident is considered gross negligence, acting with willful and wanton disregard for others, and thereby loses the ability to make a contributory negligence defense. Intoxication negates the primary defense insurance companies use.
Punitive Damages Are Unrestricted in Intoxicated Driver Cases
North Carolina restricts punitive damages in almost all situations; however, there is an exception when the death resulted from a DUI accident. Since intoxication constitutes exactly the sort of recklessness punitive damages are meant to punish, the family can seek punitive damages along with all their other claims without any restriction.
The Evidence that Forms the Claim
To prove negligence and impairment requires documentation…
- The accident report,
- police report,
- blood alcohol content test results,
- criminal investigation report,
- witness testimonies,
- reconstruction of the accident,
- and expert opinion.
Most of this evidence deteriorates or becomes unavailable over time; this is why collecting it promptly is so important.
What a Family Can Collect
A wrongful death claim can recover the cost of the last injury suffered, the cost of the funeral and burial expenses, the pain and suffering endured by the decedent before their death, the present value of loss of earnings and support, and the support services, protection, care, companionship, and guidance provided. In cases of drunk driving accident, punitive damages may be added as well.
Deadline and the Errors that Harm the Family’s Claim
The claim normally needs to be made within two years of the date of death. The opening of the estate comes first.
- A few common errors may undermine the claim
- waiting for the completion of the criminal case
- recording a statement from the insurer
- not opening the estate
- and waiting for the vehicles to be fixed or for the video to be erased.
Someone Died Because of a Drunk Driver in North Carolina? Speak with Tatum & Atkinson
Trying to determine the best course of action following a fatal drunk driving crash may be confusing, but there’s no pressure to make any decisions right now. Getting an idea of your situation is totally free. For over a decade, North Carolina wrongful death attorney team at Tatum & Atkinson has helped victims of drunk driving accident cases in North Carolina, from our Raleigh offices and throughout the state. Our founding attorney, Season Atkinson, sits on the national board of Mothers Against Drunk Driving.
The Heavy Hitters conduct the investigation and handle all of the communications regarding insurance and fight for punitive damages when legally possible so that your family can concentrate on each other. While the civil action and criminal proceeding are independent of each other, the wrongful death claim can only be filed by the personal representative of the estate and within two years; however, a drunk driving accident typically eliminates the 1% rule and leaves room for unlimited punitive damages.
Call us at (800) 529-0804 for a free consultation. We work on a contingency basis, so you pay nothing until your family receives compensation.
Frequently Asked Questions!
What if the drunk driver was never charged or was found not guilty?
A civil wrongful death lawsuit is always an option. Since it relies on a lesser burden of proof, a family can prevail despite the failure of prosecutors to bring charges or secure a conviction. The results in the criminal case do not determine the viability of a family’s civil case; rather, it is based on the facts surrounding the accident itself.
What if the driver had little or no insurance?
Perhaps. Although the driver is the clear defendant, there are instances when liability may extend to other people, such as a business that illegally serves a person who was already intoxicated to the point of danger. Whether another party has any liability would depend largely on the specific facts of the DUI accident case.
Can more than one party be held responsible?
Occasionally. Even though the impaired driver is obviously liable, there may be rare instances when other people can also have liability, like a business that illegally serves an individual who was already dangerously intoxicated.
How long does a wrongful death case take?
This depends on many factors and can range anywhere from about a year or two, depending on the intricacy of the fatal car accident, whether it’s accompanied by a criminal case, and how skillfully the insurer argues its case.
Does the money go through the estate and to creditors?
As far as wrongful deaths in North Carolina go, the settlement goes to the statutory beneficiaries of the deceased and is normally protected against all claims made by the deceased’s other creditors, except for some specific bills related to the end of life of the deceased.
What does it cost to hire a wrongful death lawyer?
No money down. This type of case operates on contingency fees; there is no fee unless there is a recovery, and the initial consultation is free. Contact a North Carolina wrongful death attorney today.
