Committed To Personalized Injury Representation


A family who has lost a loved one as a result of an accident should consult with a personal injury attorney as soon as possible to find out what their rights are and what can be done to compensate the survivors. Below is a discussion of the basic information important to know in this type of case.


Death cases in this state are governed by the Texas Wrongful Death Act, which is found in §71.00 of the Texas Civil Practice and Remedies Code. Before the Texas Wrongful Death Act was signed into law there was no lawful recourse for cases of wrongful death. This law exists specifically to provide a legal remedy in such cases.


The law states that only the surviving spouse, the children, and the parents of the deceased can bring a cause of action in a death case. Therefore, a grandchild or grandparent has no standing to bring a cause of action and does not qualify for any type of benefits under the law. Neither do the deceased’s siblings, aunts, uncles, cousins, etc. Papers that your attorney will want to see before putting any one on notice that he represents a client in a wrongful death case are birth certificates, adoption documents (in the case of adopted children), and a marriage license. All of the children of the deceased, including children from prior marriages and illegitimate children are beneficiaries under the statute. The lawful spouse of the deceased at the time of death is the spousal beneficiary under the law. Common law marriages will have to be proven by competent evidence, since no marriage license can be produced for this type of union. In cases where there is any dispute as to whether someone is a rightful heir under the Act it will be up to a judge or a jury to make that determination.


In many cases, there are multiple plaintiffs who qualify to receive damages from the death of their loved one. There can be multiple children, a surviving spouse and grandparents. How much money should each receive? This is a question to be decided by a jury, taking into account all of the evidence produced at trial, including the age of each child, the financial contributions the deceased would have been expected to give to each plaintiff, and length and closeness of the relationship between the deceased and the plaintiffs. For example, if the deceased had grown children and minor children, the minor children would probably be awarded a higher award than a grown child who is earning his or her own living.


A Jury is allowed to award damages for things such as the care, maintenance, support, advice, counsel and reasonable financial contributions that the plaintiff would have received from the deceased had the deceased lived. A jury can also award damages for what is called the loss of companionship and society, which is defined as the love, comfort, and companionship that the plaintiff in all likelihood would have received from the deceased. Other damages include the mental anguish caused to the plaintiffs as a result of suffering the loss of their loved one. Finally, the jury can award damages for the loss of inheritance – the additional assets the deceased would have left to his estate had he lived to the age of his life expectancy.


The Texas Wrongful Death Act also provides a cause of action known as a survivorship cause of action, found in §71.021 of the Texas Civil Practice and Remedies Code. This is a cause of action in personal injury which belonged to the deceased at the time of his injury. The Act merely authorizes that this cause of action survives the death of the injured person and states that it survives to and in favor of his heirs, legal representatives and the estate. The elements of damages a jury can consider are the same as with any personal injury claim and include pain and suffering, impairment, mental anguish, medical expenses, lost income, and funeral expenses. These elements are considered in the context of the period of time between the injury and the death from said injury.


As in all personal injury cases, the attorney in a wrongful death case should obtain the crash report, talk to witnesses, obtain scene photos, obtain the 911 audio, gather the medical records and bills, become familiar with the scene, and investigate whether there are any responsible parties other than the at-fault driver, such as highway signage, road design, construction company violations, and vehicle crash safety failure or equipment failures. In addition, he should investigate additional insurance which may be available, such as umbrella insurance on the at-fault driver and under-insured coverage, death benefit coverage, and PIP/medical payment coverage on the deceased’s policy. In addition to the above tasks, there are other tasks specific to the wrongful death case. There are certain documents that should be gathered such as birth certificates, marriage licenses, adoption papers, death certificate, and burial expenses. The attorney should also search for all possible heirs under the statute and make sure they are all accounted for, whether he represents one, several, or all the heirs.


As in all negligence cases, the attorney for Plaintiffs must prove two things – liability and damages. Liability involves proof that the Defendant(s) negligently caused the injuries to the deceased that led to his death. Proving damages (aside from monetary damages such as lost income and medical and burial expenses) however, involves proof of the worth of the deceased’s life to each plaintiff. In other words, the jury has to put a monetary value on the care, maintenance, support, advice, and counsel that each plaintiff would have received from the deceased had the deceased lived to his life expectancy, as well as put a monetary value on the loss of the love, comfort, and companionship suffered by each plaintiff as a result of their loved one’s wrongful death. Lastly, the jury has to put a monetary value on the mental anguish caused to each plaintiff as a result of their loved one’s wrongful death. This is done by showing the jury the depth of the deceased’s love and commitment to his spouse, children, and parents, as well as whether that love and commitment was shared by the family in return. Did the deceased have a special relationship with each son and daughter? Taking one to sporting events, one to music lessons, and one camping? Was he always there to help with homework, to advise them, and to offer them support as well as discipline? As to the surviving spouse, did he demonstrate his love and commitment to his wife throughout the length of their relationship? Was he a good husband and father? Was he a worthy son? Was he equally loved and respected in return? In preparation, the attorney should ask the family for evidence of that love, commitment, support, and respect. Usually, this evidence exists in documents, photos, texts, emails, stories, and mementoes. The attorney and the family should review, for example, family vacation photos, personalized Christmas cards, photos of holiday celebrations, birthday cards, letters, texts, special gifts, photos, invitations, and souvenirs from anniversary celebrations, treasured mementos, keepsakes, videos of the deceased and his family, and anything else that may help the jury understand the love and closeness between the deceased and his family. Finally, the attorney should spend time with his clients to better understand the deceased and the love he shared with his family. Selecting one or two poignant stories that demonstrate this love can be very powerful when shared with the adjuster or the jury.


No two cases are alike and no attorney can tell you what your case is worth until a settlement is reached or a jury returns a verdict. A lot of the value is determined by the facts of the accident. Was the defendant drunk and drag-racing, or was she a grandmother on her way to church who ran a red light? Some of the value is determined by the age of the children and the financial contributions the deceased was able to make while alive. The rest of the value is determined by the closeness of the deceased to each plaintiff and the evidence of such closeness.


This article contains basic information about wrongful death cases in terms that a person with no legal training can understand. It is intended as an overview and not as a detailed study of how to prepare and present such a case to a jury. If you have lost a loved one as a result of an accidental death, please accept my condolences for your loss. I hope reading this has helped you understand some of the legal aspects of a wrongful death case.