If someone dies in an auto accident due to the actions of another driver or the failure of the municipality to maintain the road, remaining family members should retain experienced legal counsel to build a claim for compensation, says personal injury lawyer Steve Rastin.
“If properly developed, these actions can bring in badly needed financial support, but you need to have someone who knows how to collect the proper information and who can hire appropriate experts to build the case,” says Rastin, managing partner of Rastin Trial Lawyers. “If that doesn’t happen, the people who need the assistance the most — the dependants of the person who has died — can end up with nothing.”
Rastin says that accident victims “are normally able to tell their side of the story, including how an accident happened.”
“But you obviously can’t do that when your client is killed in the accident. In wrongful death cases, you have to rely on police reports and forensic evidence gathered at the scene to examine liability,” says Rastin. “And if the other driver wasn’t killed, which is often the case, that person can blame the deceased driver and claim they were texting or driving erratically, which makes these cases more challenging from a liability perspective.”
He says the other important difference between the two types of claims involves proving damages.
“If someone is injured, they can ask for compensation for pain and suffering, lost wages, and medical expenses. In a fatality case, the claim is not focused on the person who passed,” Rastin says. “If somebody dies in or shortly after an accident, many lawyers won’t advance a case on behalf of the estate at all, since they can’t claim for pain and suffering. The people who are really victimized are the surviving family members.”
Rastin says certain dependants can advance a claim under s. 61 of the Family Law Act, which states that if someone suffers an unexpected death as a result of someone else’s negligence, their surviving spouse, kids, grandkids, and siblings may obtain compensation to offset some of their losses.
While the statute is quite clear about who can claim compensation, he says cases do arise where, for example, a stepson or a daughter-in-law feels they are entitled to support.
“Maybe the daughter-in-law called him dad and treated him as her father, and vice versa, so we would basically argue that, in his eyes, she was effectively his daughter,” Rastin says.
Under this section of the Act, Rastin says people can claim for the loss of care, guidance, and companionship, and the court will look at the relationship of the victim to those left behind.
“Did the person drive the kids to school every day, or to medical appointments, or did he or she help by making meals or cleaning the house or by providing advice when there were problems?” he says.
Rastin says people can also advance these claims in typical injury cases, but the approximate $19,000 deductible taken from any of these awards discourages many lawsuits.
“The average Family Law Act claim is for about $7,500, which means it gets reduced to nothing by the deductible,” he says.
However, there is no deductible with fatality claims, Rastin says, with grieving dependants receiving the full amount awarded by the court.
“Deciding how much to ask for in a claim can be difficult,” he says. “Some people might think that having a spouse killed in a wrongful death case should be worth $1 million even though it should be, it’s probably not in the eyes of the court.”
In Canada, jurisprudence has put limits on these claims, Rastin says, and the effective limit on losing a family member is approximately $100,000. He notes that in Toronto, a family was awarded $100,000 when their child died in a school playground accident.
“They were from a Korean background, and it was argued the boy would have cared for his parents in their old age if he were alive,” he says.
In another case, Rastin says a jury awarded a woman $1 million for the loss of her partner, only to have the appeal court reduce it to $75,000.
“There are limits in place, and that’s why not having the deductible on fatality claims is very important, as the dependants can keep the entire award,” he says. “The removal of the deductible is often the difference between a claim being viable or uneconomical.”