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Wrongful Death FAQs

Frequently Asked Questions

Q:

What is a wrongful death claim?

A:

If someone is killed as a result of somebody’s negligence a wrongful death can be filed to help the surviving next of kin recover for their loss. Wrongful death lawsuits seek to hold the negligent individuals responsible for the death their actions caused. A death can cause both economic and non-economic distress on the surviving family members. A wrongful death claim allows those suffering the death of a loved one to receive compensation. A wrongful death claim also allows recovery for the deceased’s pain and suffering under special circumstances, punitive damages may also be recoverable.

Q:

Who can file a wrongful death lawsuit?

A:

Montana’s wrongful death statute specifies that “the personal representative of the decedent’s [meaning the deceased person’s] estate” may file a claim in court if injuries inflicted by another have caused the deceased person’s death.

If the deceased person is a child under age 18, the wrongful death claim may be filed by either one of the child’s parents, or by both parents together. If the child has no parents, the claim may be filed by the child’s legal guardian.

A wrongful death claim is a civil lawsuit, which means that the interested private parties must bring the claim to court themselves (usually with the help of an attorney). In this way, a wrongful death claim differs from a criminal case, in which charges are filed by the federal, state, or local prosecutor. In a wrongful death claim, liability is expressed solely in terms of money damages (paid by a defendant who has been deemed legally responsible for the decedent’s death). By contrast, in a criminal case, guilt may be punished with a term of imprisonment, a fine, or other penalties.

Although family members cannot file criminal charges themselves, they may be asked to participate in a criminal case if one is filed in relation to the death, and the personal representative of the estate may file a wrongful death claim even if a criminal case is proceeding.

Q:

What damages can be recovered in a wrongful death case?

A:

Damages in a Montana wrongful death case are intended to compensate the estate or the surviving family members for the loss they suffered as a result of the deceased person’s untimely death. In Montana, damages may be either “economic” or “non-economic” in nature. Both types of damages may be recovered in a single wrongful death case.

“Economic” damages are damages for which a concrete dollar amount can be established, usually through the use of evidence like receipts, bills, or pay stubs. Economic damages include losses like medical bills, funeral and burial expenses, and the lost value of the wages and benefits the deceased person would likely have earned during his or her expected lifetime if the untimely death had not occurred.

“Non-economic” damages are harder to quantify, but they are still real losses suffered by the survivors in a wrongful death claim. They include losses like pain and suffering endured by the deceased before death and the loss of care and companionship faced by the surviving family members.

In Montana, the defendants in a wrongful death case may ask for a statement detailing the damages that the personal representative is seeking. This statement must be made in writing and it must fulfill a number of other requirements.

Q:

Is there a time limit for filing a wrongful death claim?

A:

Montana sets time limits on the filing of civil lawsuits, including wrongful death cases. A law that sets out this kind of time limit is called a “statute of limitations.”

Under Montana Code Annotated section 27-2-204, a wrongful death claim must be filed within three years of the date of the deceased person’s death. (Note: If the case stems from a criminal homicide, the time limit is bumped up to ten years for the filing of a civil claim for wrongful death.)

Claims that are not filed before the statute of limitations time period passes are typically thrown out of court without a hearing. Since a wrongful death lawsuit represents a significant chance for a family to recover damages after an untimely death, it is important to ensure a wrongful death claim is filed within the three-year time period.