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Wrongful Death and Survival Actions are some of the most tragic and oftentimes most complex, types of negligence lawsuits that can be filed in the State of Illinois. Wrongful death and survival lawsuits are typically filed simultaneously because both claims arise when a person is killed as a result of another person’s negligence. Our attorneys will explain the process of forming a probate estate, obtaining an administrator for the estate, and prosecuting appropriate wrongful death and survival actions in the correct Illinois State Circuit Court or, in some cases, Federal District Court. It’s important to remember, however, that Wrongful Death Actions and Survival Actions are not the same thing.
Survival Actions. In Illinois, the Survival Act allows an executor or administrator to file suit for injuries in the place of a deceased person who was killed by another. For example, consider a man killed by a drunk driver, who may have lingered in the hospital for a few days before passing away. The man would have sustained medical bills, pain and suffering, and other injuries as a result of being struck by the drunk driver. There will be funeral expenses. Illinois law allows for compensation for the person who passed away:
In addition to the actions which survive by the common law, the following also survive: actions of replevin, actions to recover damages for an injury to the person (except slander and libel), actions to recover damages for an injury to real or personal property or for the detention or conversion of personal property, actions against officers for misfeasance, malfeasance, nonfeasance of themselves or their deputies, actions for fraud or deceit, and actions provided in Section 6-21 of “An Act relating to alcoholic liquors”. 755 ILCS 5/27-6. Source: ILGA.Gov
Because the person has passed away, any settlement funds or jury verdict obtained becomes the property of the probate estate. The funds will be distributed by the probate judge, who will hold hearings to determine what legal heirs exist and how much each heir should receive.
Wrongful Death Actions. In Illinois, the Wrongful Death Act allows the heirs of a person who was wrongfully (i.e. negligently) killed by another, to recover for their injuries. For example, consider the children of a man killed by a drunk driver. Those children, had the father lived, would likely have enjoyed ongoing love, companionship, and financial support. Instead, the children lost those support systems and instead have sustained grief and suffering. Illinois law allows compensation under these types of circumstances:
Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. No action may be brought under this Act if the decedent had brought a cause of action with respect to the same underlying incident or occurrence which was settled or on which judgment was rendered. 740 ILCS 180/1. Source: ILGA.Gov
Families facing wrongful death and survival actions typically have many questions, including:
- What kinds of wrongful death and survival actions can I file?
- How do I file a wrongful death and survival lawsuits?
- Where should the probate estate be opened, and who administers the estate?
- Who is sued in a wrongful death or survival action, the individual who killed my loved one, or the insurance company?
- What happens during a wrongful death and survival lawsuit?
- What are the costs of litigating a wrongful death or survival action?
- If we go to jury trial and win, can the Defendant be ordered to reimburse my legal fees?
- How do I prepare for my legal consultation with the Noll Law Offices?
Frequently Asked Questions
What kinds of wrongful death and survival actions can I file?
There are many types of negligence that provide recovery under wrongful death and survival actions. Common theories of recovery include Medical Malpractice, Motor Vehicle Collisions, and Nursing Home Abuse and Neglect. Therefore, it is important that any attorney you consider retaining can explain not only the wrongful death and survival acts to you, but also the underlying theories of negligence that resulted in the death. Your attorney should also be able to explain the insurance claims process, because oftentimes most wrongful death and survival actions begin with filing claims for insurance coverage.
How do I file a wrongful death and survival lawsuits?
After a probate estate is opened, an attorney will usually file suit in the county where the action forming the basis of the injury occurred. For example, a person killed by a drunk driver in Springfield, Illinois, would likely be filed in Sangamon County, with the Seventh Judicial District Court. The Illinois Code of Civil Procedure states:
§ 2-101. Generally. Except as otherwise provided in this Act, every action must be commenced (1) in the county of residence of any defendant who is joined in good faith and with probable cause for the purpose of obtaining a judgment against him or her and not solely for the purpose of fixing venue in that county, or (2) in the county in which the transaction or some part thereof occurred out of which the cause of action arose. 735 ILCS 5/2-101. Source: ILGA.Gov
The “Plaintiff” is usually the administrator of the probate estate, who files the lawsuit on behalf of the deceased person and living heirs. The lawyers will file a “Complaint at Law,” describing the negligent acts of the Defendant and claiming that it caused the death of the person injured. For example, the Complaint may allege that an intoxicated motorist disregarded a stop sign, thereby killing the driver of another automobile. The Complaint will request that monetary damages be paid to the decedent and his heirs.
Where should the probate estate be opened, and who administers the estate?
The first step in opening a probate estate is to determine whether a person left a will. The will usually includes the decedent’s preferred “Executor” of their estate, together with instructions about how their property should be distributed to living heirs. If the original will can be found, it must be filed with the Probate Court. Usually, the Executor named in the will is appointed to handle the assets of the estate, including any survival or wrongful death actions.
If no will exists, a “Petition for Letters of Administration” and other legal documents must be filed with the Court, requesting the appointment of an administrator of the estate.
In either case, a “Petition to Open a Probate” and other pleadings must be filed in the County where the decedent resided, requesting that the probate estate be opened. Legal notice of the proceedings must be provided to all living heirs of the decedent and the heirs have a right to appear in Court with whatever legal issues they may have. The Judge will appoint a legal representative, either an executor or administrator, who will have legal authority to handle the estate assets.
Once the probate estate is opened, notice must be filed in a local newspaper so that creditors or other interested parties will be advised of proceedings. The executor or administrator will be provided with legal authority to begin filing the survival or wrongful death action.
Who is sued in a wrongful death or survival action, the individual who killed my loved one, or the insurance company?
Generally, the person or company who caused your loved one’s death is sued as the Defendant. However, insurance companies typically “indemnify” the Defendant and pay for any funds obtained through settlement or jury verdict.
For example, consider the case of the drunk driving disregarding a stop-sign and killing the driver of another vehicle. The drunk driver likely held vehicular insurance that should provide financial “coverage,” of the collision. If the drunk driver was working at the time of the collision, the employer may also carry insurance to cover the event.
Under this example, the executor or administrator of the estate would likely file suit against the drunk driver in the county where the collision occurred. If the case went to jury trial, the damages (i.e., money) awarded by the jury would become an asset of the probate estate. The insurance company would pay the amounts awarded at jury trial, to the extent of policy coverage. The executor or administrator of the estate would then go to Judge presiding over the probate estate, and ask that the money be distributed to the heirs.
What happens during a wrongful death and survival lawsuit?
As discussed above, the executor or administrator of the estate will file the wrongful death and survival action suit against the Defendant. The process begins when the attorney files a “Complaint at Law,” seeking monetary damages for the Defendant’s negligent behavior.
After the Complaint is filed, the Defendant is served. Your attorney will arrange for “summons,” to be issued, and request local law enforcement or a private investigator to serve the legal paperwork on the Defendant. Once the Defendant is served, he or she typically has 30 days to enter an appearance and claim any possible legal defenses. Usually, an attorney enters an appearance on behalf of the Defendant.
After the Defendant’s attorney has entered an appearance, discovery will commence. This process usually involves exchanging copies of the evidence held by the Parties, and taking the depositions of witnesses. Depending on the complexity of the litigation, experts will may be retained for trial. Their depositions will also be taken in preparation of trial.
Your attorney may also choose to file requests for admission and other legal documents in order to simplify the issues presented at trial. Following the close of discovery, trial preparation will begin in earnest. Witnesses will be subpoenaed, trial exhibits prepared, and other pre-trial paperwork will be filed. Jury trial should follow shortly thereafter. When the jury awards a verdict, the sums are usually paid by the insurance company to the probate estate. The probate judge will decide how the funds are distributed.
What are the costs of litigating a wrongful death or survival action?
Costs of litigation vary wildly in wrongful death and survival actions, ranging from $10,000.00 to over $80,000.00. This is because there is a great variety in the complexity of litigation, spanning medical malpractice, motor vehicle collisions, and nursing home violations. Our office will be able to explain the differences in types of litigation and how it will affect your litigation costs.
For example, consider the rather “cut and dry” case of the drunk driver who disregards a stop sign and kills another motorist. Litigation costs may be rather low, consisting of taking the depositions of the witnesses to the collision, paying court-reporters, potential crash reconstruction experts, and deposing emergency room doctors to testify that the death was caused as a direct result of the collision. On the other end of the spectrum, consider a medical malpractice claim in which a physician “misses” a cancer diagnosis. Multiple independent expert oncologists will likely be hired to provide opinions of causation. There will be an extensive investigation into the medical history of the decedent, defenses involving causation, and the majority of the decedent’s treating physicians will need to be deposed.
For this reason, most attorneys litigate these cases on a “contingency fee” basis, whereby they are only paid if successful in obtaining a settlement or jury verdict. The costs of litigation are paid from the settlement or jury verdict funds, together with the attorney’s legal fees. Our Wrongful Death and Survival Action Lawyers will provide you with a frank analysis of whether the costs of litigation are outweighed by years of litigation and potential loss at trial.
If we go to jury trial and win, can the Defendant be ordered to reimburse my legal fees?
Generally, negligence cases that go to trial result in an award of medical costs, pain and suffering, grief and loss of companionship, and other damages. Attorney’s fees and costs are not usually included, unless a special Illinois law has provided for the same. For example, nursing home cases filed under the Illinois Nursing Home Act specifically provides that the Defendant “shall” pay the attorney’s costs and fees if a favorable verdict is obtained at trial. The same would not occur in a wrongful death action arising from a drunk driving claim. A competent attorney should be able to explain your claim, and potential awards, in great detail to you.
How do I prepare for my legal consultation with the Noll Law Offices?
To expedite legal review of your claim, you should bring a copy of the medical records, police investigations, photographs, videos, Facebook pages, text messages, correspondence, insurance information, and any other evidence in your possession to your claim. The attorney will review the records, together with any other evidence in your possession, and provide you with a free legal opinion as to the merits of your claim.
The Wrongful Death Attorneys at the Noll Law Office have over 50 years combined legal experience. Our family firm is renowned for compassionate communication with clients and aggressive advocacy in court. Every attorney in our office has significant jury trial experience and will insure that you are kept up to date with all steps in the litigation process.
If you or a loved one would like a free consultation, call today at (217) 414-8889. You will not be a charged unless our firm obtains a settlement offer on your behalf or wins at trial.