When your loved one dies in a car crash, it causes an immediate rift in your family’s social, emotional, and financial wellbeing. The Illinois Wrongful Death Act gives you a legal process for damage recovery if someone’s negligent actions caused the accident. The process is sometimes complicated. To avoid missing a critical requirement or deadline, you should consult with a legal representative for guidance on protecting your rights.
When a negligent driver causes your loved one’s death, grief and anger often disrupt everything you do. If the decedent is your spouse, you must handle your new financial and family challenges alone. It becomes your responsibility to get your family back on track to meet school, work, personal, and financial obligations. You must find new ways to accomplish daily tasks, often while adjusting to a reduced income.
Before your financial losses become overwhelming, it’s important to take the proper legal steps to recover the damages to which you’re entitled. While a financial recovery won’t lessen your grief or loss, it will help you provide a better future for you or your family. A car accident lawyer can help you through that process.
The Illinois Wrongful Death Act
When a negligent driver fatally injures your loved one, you have legal rights under the Illinois Wrongful Death Act. You’ll find the provisions detailed under ICS, Civil Liabilities, 740 ILCS 180. The statute provides a legal recovery remedy for surviving spouses and next of kin. It allows you to recover the damages the decedent would have recovered had he or she not died before making a claim or filing a suit.
The statute also includes provisions for damage recovery for “…grief, sorrow, and mental suffering.” Courts base your ability to recover damages on specified personal relationships with the deceased.
Other critical requirements apply:
- The decedent’s personal representative–often the spouse–must initiate the lawsuit on behalf of all next of kin.
- Next of kin include the decedent’s natural children and natural parents. Under the statute, an “adopting parent” and an “adopted child” have the same rights as natural parents and children.
- Illinois courts distribute judgments and/or agreed settlements among the surviving spouse and next of kin. Courts base distribution upon a person’s “…percentage of dependency…” upon the deceased person. Damage calculations take into account all other beneficiaries’ damage percentages.
- In the absence of a surviving spouse or next of kin, hospitals, medical providers, and others receive the proceeds of a decedent’s wrongful death lawsuit. The personal representative also receives a fee for administering the estate.
- In a wrongful death action involving an auto accident, the statute of limitations expires precisely two years after the date of the occurrence in most cases, however there are shorter one year statutes for certain defendants. If the personal representative doesn’t settle the claim or file a lawsuit by that date, the decedent’s family gives up its right to file a claim for damages.
Making a Wrongful Death Claim
The Illinois legislature constructed the state’s wrongful death statutes to provide financial support for a decedent’s family. Damage recovery is based on the decedent’s family’s ability to prove that the other driver’s negligence caused the accident. As with other liability cases, you must present evidence that proves the other driver was at fault.
When a driver sustains fatal injuries, civil courts must make their decisions based on the remaining driver’s testimony, available physical evidence, witness accounts, and police officers’ opinions. Courts have leeway to find negligence against both drivers, and still pay a portion of the decedent’s wrongful death claim.
Dealing With Insurance Companies After a Fatal Auto Accident
Judges and juries sometimes resolve wrongful death cases, but they often begin and end as liability insurance claims. When a fatal car accident occurs, insurance companies become involved immediately. Whether or not a court ultimately resolves a wrongful death case, insurance companies usually conduct the initial investigation.
If you and your loved one have separate insurance policies, you should locate the insurance policy and have your lawyer make the required claim report. To preserve the decedent’s policy rights, you should make a report as soon as possible. While this often seems inconvenient when you have so many other post-accident responsibilities, reporting an accident as soon as possible helps protect your right to make a claim.
Your Insurance Company’s Investigation
When you report an auto crash with fatal injuries, the insurance company contacts witnesses, drivers, and passengers. They also obtain official reports and conduct site investigations. When liability issues remain unresolved, some insurers hire accident reconstruction experts to provide an opinion based on physical evidence, traffic pattern analysis, debris, skid marks, and other key elements.
Insurance companies conduct comprehensive investigations to complete the following tasks.
- Determine negligence and fault
- Evaluate and pay for the deceased insured’s vehicle damages and address any lienholder interests
- Examine and photograph vehicle damage, points of impact, and other physical evidence that might provide insight into the accident
- Assess liability for the other driver’s vehicle damages and injuries, as well as injuries to occupants in the other vehicle
- Determine if the deceased insured has a valid Uninsured or Underinsured or Motorist claim.
Uninsured and Underinsured Motorists Claims
If the negligent party didn’t have liability insurance at the time of the accident, Uninsured Motorist coverage pays the damages the responsible party’s carrier would have paid. If the other party had liability insurance, but not enough to pay all of the wrongful death damages, the Underinsured Motorist coverage pays the difference between the other party’s limit and the UIM limit. UM and UIM coverages pay based on the other party’s liability. You have the same duty to prove fault.
Uninsured Motorist coverage is mandatory in Illinois. An insured must carry coverage in an amount equal to mandatory liability limits: $25,000 per person/$50,000 per accident. An insured may request a lower or higher UM/UIM limit when purchasing a policy.
The Liability Carrier’s Investigation
The other driver’s liability insurance carrier will likely conduct its own investigation. Unless you were a passenger when the accident occurred, they realize that you have no direct information about what happened, but they will likely contact you anyway. If you are the decedent’s spouse, legal representative, or a close relative, they see you as a source for information. You have no duty to talk to the other driver’s insurance company or provide any of the requested information.
When a driver sustains fatal injuries, their case has a potentially high settlement value. If liability insurance carrier must reserve their case file without direct information, they rely on creative resources to help evaluate the damages. Beyond crash scene evidence, insurers conduct social media investigations on Facebook, Twitter, LinkedIn, and other sites. As families often forget to deactivate a decedent’s pages, they often become a rich source of personal and professional information.
Insurance companies may also conduct activities checks. While not common, a representative could visit the decedent’s neighborhood to view their home and document how they lived. They may also talk to neighbors seeking additional information to support their evaluation and settlement efforts.
A Negligent Driver’s Insurance Carrier May Offer a Settlement
Illinois courts provide a formal process for resolving wrongful death cases. That doesn’t prevent a responsible driver’s insurance carrier from attempting to settle your case. If their liability investigation determines that their insured is at fault, they sometimes approach the decedent’s representative to resolve the case before the family files a lawsuit.
Liability insurers do this for several reasons.
- They can’t predict how much a judge or jury might award.
- Insurance companies prefer to settle quickly as injury values often increase as time passes.
- They want to avoid punitive damage awards. In some cases, an insurance company is responsible for paying punitive or exemplary damages.
- They want to take advantage of the opportunity to settle your case for a low amount before you seek legal representation.
Do You Need an Attorney to Recover Wrongful Death Damages?
After losing a loved one, you may never feel like it’s the right time to take legal action. However, It’s important to learn your legal options so you can protect your rights before you lose the opportunity. Wrongful death attorneys work to resolve your legal, liability, and damage issues. They intervene with insurance companies, protect your rights, and prepare your case for courtroom presentation. They work to recover damages while you take care of your family.
An initial legal consultation is typically complimentary. You discuss your case with a lawyer, get to know your legal options, and may choose to pursue legal action. The choice to move forward is always up to you.
That being said, it’s recommended that you retain counsel as soon as possible. Cases are often damaged by claimants trying to deal with an insurance carrier on their own.