Wrongful Death

In the wake of an accident, an attorney looking to protect your rights knows what evidence needs to be gathered and the measures the law provides to help ensure that it is not lost, altered, or destroyed. It is also during this period shortly following an accident that witnesses are most easily located and their memories are intact.

Our wrongful death lawyers at Glenda Cochran Associates – Birmingham Personal Injury Lawyer have decades of experience handling these cases and have recovered millions of dollars on behalf of our clients in such cases.

What is a Wrongful Death in Alabama?

A wrongful death occurs when a wrongful act, omission, or negligence causes the death of an individual.

Incidents leading to wrongful death can include:

• Premises liability
• Improper service of alcohol (dram shop)
• Car accidents
• Truck accidents
• Motorcycle accidents
• Medical malpractice
• Product defects
• Workplace and industrial accidents
• Plane crashes
• Boating accidents
• Pedestrian accidents
• Shootings by police or by others
• Nursing home abuse and neglect

Wrongful death lawsuits are civil in nature. They seek money damages, brought on behalf of the deceased person’s legal heirs, typically their surviving spouse and children. Such civil lawsuits are separate and distinct from any criminal prosecution that the State might bring against a wrongdoer.

How Wrongful Death Claims in Alabama Work

Alabama’s wrongful death laws are unique. The right of action is purely statutory, arising under Ala. Code § 6-5-410. As in other states, wrongful death actions in Alabama require the plaintiff to prove that the decedent’s death was caused by a defendant’s negligent or otherwise wrongful conduct. However, unlike in almost all other states, no compensation is allowed based on the monetary value of the life of the decedent.

Thus, it does not matter, for example, how much or how little income the decedent would have likely earned over the remainder of their lifetime. Instead, the damages for wrongful death in Alabama are solely punitive in nature. Such damages are awarded to punish the wrongdoer and to discourage similar wrongs in the future. Therefore, the amount of damages awarded relates directly to the culpability of the defendant’s conduct, that is, how bad that conduct was.

The damages awarded in Alabama wrongful death actions pass to the decedent’s heirs as determined by probate code provisions specifying the distribution of an estate when a person has died without a will. See Ala. Code § 43-8-40 to -48. Further, the award passes directly to such statutory heirs, regardless if the decedent had a will, and the funds do not become part of the decedent’s estate. Therefore, they are not subject to the debts or liabilities of the estate. Also, because the damages are punitive in nature, they are not subject to state or federal taxes.

Who Can File a Wrongful Death Claim?

In general, the only person who may file a wrongful death action in Alabama is the personal representative of the decedent’s estate.

If the decedent had a will, the person designated by the will as its executor will be the personal representative. If the decedent died without a will, a probate court has to appoint an administrator of the estate, see Ala. Code §§ 43-2-40 to -48, who would then serve as the personal representative. Priority to serve as administrator is generally granted, in order, to the surviving spouse, next of kin who would be heirs of the estate, estate creditors, and the county administrator. Ala. Code §§ 43-2-42. Such family members and other enumerated parties must file a petition in the probate court to serve as administrator within 40 days after the death to preserve their right of priority.

An exception to the rule that only a “personal representative” may bring a wrongful death action exists where the decedent is a minor at the time of death, meaning less than 19 years old. Ala. Code §§ 6-5-390, -391. In such cases, the minor’s mother and father each have an equal right to bring the action provided they are lawfully living together as husband and wife. If they are not, then the party having legal custody of the minor child has an exclusive right to commence the suit. If no suit is filed within six months of the death, the action may be brought by the decedent’s personal representative.

Another exception to the “personal representative” requirement exists under the Alabama Workers’ Compensation Act. Namely, if a person’s death arises out of and in the course of the person’s employment, a wrongful death claim against a third party other than the decedent’s employer, for example, the manufacturer of a defective product causing the death, is brought by the deceased worker’s “dependents.” Ala. Code § 25-5-11(a). Dependants generally include the surviving spouse and minor children. If the decedent had no dependents at the time of his death, the action may be brought by the personal representative.

When Must a Wrongful Death Action Be Filed?

The Alabama wrongful death statute contains a two-year statute of limitations. Ala. Code § 6-5-410(d). This means that a lawsuit must be filed within two years of the person’s death, not the wrongful act.

We’ve been defending Wrongful Death victims for 30 years