America’s legal system was built upon the precedents of Old English Common Law. The Common Law legal system did not allow claims for wrongful death. In Old England, if a working man was run over and killed by a negligent cart driver, the dead man’s family could not sue for compensation caused by the death. However, if the man were run over but did not die, he could bring suit, and collect money damages. Over the years, the injustice of this situation was recognized and addressed. Statutes were passed that authorized “wrongful death” suits. Like every other state, Nevada has its own take on how to handle a wrongful death action. Nevada’s wrongful death statute is found at N.R.S. 41.085.
Nevada’s wrongful death statute recognizes two classes of Plaintiffs. First is the claim brought in behalf of the Estate. The Estate’s claim is filed by the personal representative of the decedent. N.R.S. 41.085(5). The Estate can recover “[a]ny special damages, such as medical expenses, which the decedent incurred or sustained before his death, and funeral expenses; and . . .[a]ny penalties, including, but not limited to, exemplary or punitive damages, that the decedent would have recovered if he had lived.”
The second class of claimants is made up of those people who qualify as heirs under Nevada’s the laws of intestate succession. N.R.S. 134.030 et seq. Each heir can recover for his or her own “grief or sorrow, loss of probable support, companionship, society, comfort and consortium, and damages for pain, suffering or disfigurement of the decedent”. N.R.S. 41.085(4). Fiancées, unmarried partners, stepchildren and foster children may not sue for wrongful death, even if they are beneficiaries under the decedent’s will, or were wholly dependent on the decedent.
The claims of the Estate and the heirs are often brought in the same law suit, but don’t need to be. A settlement with the Estate does not release the individual claims of the heirs and vice versa. Most importantly, while the statute of limitations for wrongful death actions is two years, the statute is tolled during for any heir that is a minor. While the Estate must file its suit within two years of the death, a minor heir’s statute will not expire until two years after the minor reaches the age of 18.
When dealing with a wrongful death case it is critical that all potential heirs be identified; and included in any settlement. A settlement which does not include all potential parties leaves an insured and his insurer at risk for future litigation.
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Mills & Associates is experienced in defending wrongful death claims in Nevada. Please contact us with any questions that you might have.