Who can bring an action on behalf of a deceased person?
Minnesota personal injury attorney James Heuer talks about who can bring an action on behalf of a deceased person.
Phone: (612) 333-3160
A wrongful death case is something that was created by the legislature to allow the next of kin to be compensated for their loss as a result of someone’s death. And obviously, the dead person can’t bring the claim so the legislature created a system whereby the next of kin get together and select and individual or individuals that they want to be the personal representative of the state, the trustee, and then bring the action in the name of the estate.
So many times, I’ve seen people come in and they’ve already started trying to negotiate with the insurance company when in fact, they don’t have the power to do so even though it’s a spouse or a parent. So what has to happen is you’ve got to petition the court for an appointment of a trustee. And most family’s get along and they can sign consents and we collect the consents, put the paperwork together, ask the judge to appoint this particular individual as the trustee. Then the trustee can hire the lawyer and once the lawyer is hired then we pursue the claim for damages.
And one of the things that I hear a lot is I could have died or something like that that’s probably a question I answer a lot. And it’s like well, fortunately you didn’t’ because I wouldn’t have been able to talk to you today. So cases for the death are a pecuniary loss so if a husband dies and is making $100,000.00 a year and he’s got a wife and three kids or the breadwinner it doesn’t have to be the wife so whoever dies those damages are what the estate can collect.
The other one that’s a big issue of recovery is society companionship, loss of comfort. I just got a case the other day I’m working on where a 17, 18-year old lost their dad. So there’s a father that’s not going to be available to walk them down the aisle, to help them with graduation, to do the kind of things that a father does with a daughter so that’s a loss that is compensable under Minnesota law.
And once a determination is made as to the amount of damages and we at Heuer Fischer negotiate a settlement and recommend it and our clients agree that’s not good enough. You still have to go back to the court and the court has to approve the settlement and has to approve the disbursement of the funds. And that’s a real safeguard, I think, for people because it’s just the losing of a loved one and I can’t tell you the number times somebody call and somebody left in the morning and they never came home and how that throws the whole family and the parents, the children, whatever age group it’s just life shattering and changing.
And so to have the courts be able to kind of make sure that some unscrupulous family member isn’t taking the money and investing it in chinchilla futures and then, at the end to say okay, that’s a good settlement. And we think that it may be for this minor child we should do a structure settlement because if they get $50,000.00 or $100,000.00 on their 18 birthday they might make the wisest investments on their own.
So the systems in place to compensate for the loss and then protect those that are being compensated, at least the first level so that they get a chance to get reorganized without the loved one who died.