Both Indiana and Kentucky have what is known as wrongful death laws. Only lawyers use the term wrongful death. If you have lost a friend or family member in a car wreck or a motorcycle crash, this is what I am talking about.
First, I personally have lost both a family member and a good friend before it was their time. So I am sorry for your loss and I understand that that this is something you learn to live with, not get over.
Second, when we undergo such a devastating loss, we don’t think straight. You do not need to be making any major decisions especially in regard to a personal injury claim. So while I will list below some of the law in regard to deaths caused by car wrecks, I would really prefer you contact me by phone or schedule a meeting. I will not push you into signing contracts. Rather, we can discuss what your legal rights and when you are ready, we can decide how to proceed on the wrongful death claim.
Kentucky and Indiana law does not guarantee that the at-fault driver has
enough insurance to cover your injury damages or the decedent’s lost wages. To give you an example, I had a client who was stationed at Ft. Knox, Kentukcy and had over 19 years in the military and was supposed to retire within six months. At that time, he was scheduled to start working with a company in
Iraq wherein he would have made over six figures a year as a salary.
I calculated his lost wages alone were over $800,000. Unfortunately, he was killed in a motorcycle accident and the at-fault driver only had $250,000 in insurance coverage. He did not have underinsured motorist coverage on the motorcycle policy either. While we could have sued the at-fault driver and tried to go after his personal assets to satisfy any judgment we might have obtained, the asset check showed that the at-fault driver had nothing which we could have executed a judgment against. In other words, had we proceeded with a wrongful death lawsuit, we would have had piece of paper saying that he owed money but nothing more. Also, he could have bankrupted that judgment as well.
411.130 Action for wrongful death — Personal representative to prosecute —
Distribution of amount recovered.
(1) Whenever the death of a person results from an injury inflicted by the
negligence or wrongful act of another, damages may be recovered for the death
from the person who caused it, or whose agent or servant caused it. If the act
was willful or the negligence gross, punitive damages may be recovered. The
action shall be prosecuted by the personal representative of the deceased.
(2) The amount recovered, less funeral expenses and the cost of
administration and costs of recovery including attorney fees, not included in the
recovery from the defendant, shall be for the benefit of and go to the kindred of
the deceased in the following order:
(a) If the deceased leaves a widow or husband, and no children or their
descendants, then the whole to the widow or husband.
(b) If the deceased leaves a widow and children or a husband and children,
then one-half (1/2) to the widow or husband and the other one-half (1/2) to the
children of the deceased.
(c) If the deceased leaves a child or children, but no widow or husband, then
the whole to the child or children.
(d) If the deceased leaves no widow, husband or child, then the recovery shall
pass to the mother and father of the deceased, one (1) moiety each, if both are
living; if the mother is dead and the father is living, the whole thereof shall pass
to the father; and if the father is dead and the mother living, the whole thereof
shall go to the mother. In the event the deceased was an adopted
person, “mother” and “father” shall mean the adoptive parents of the deceased.
(e) If the deceased leaves no widow, husband or child, and if both father and
mother are dead, then the whole of the recovery shall become a part of the
personal estate of the deceased, and after the payment of his debts the
remainder, if any, shall pass to his kindred more remote than those above
named, according to the law of descent and distribution.
Only the representative of the estate has the right to bring a wrongful death claim. So if an estate has not been opened because the deceased had little or no assets, an estate has to be opened and a personal representative has to be appointed in order to prosecute the wrongful death claim.
Compensatory damages are designed to compensate an individual for the losses they suffered. Punitive damages are designed to punish an individual forgross negligence or reckless behavior. Both types of damages can be recovered in a wrongful death claim. Specifically, damages include the lost earning power of the decedent, funeral bills, plus pain and suffering and medical expenses. Kentucky law does not allow compensation for “loss of enjoyment of life.”
The recovery for wrongful death is controlled by the above statute and while it has to be prosecuted by the personal representative of the estate, the recovery is not considered an asset of the estate. As a result, the recovery passes outside the estate. However, this means that a Last Will and Testament does not trump the provisions of the wrongful death statute. The wrongful death
statute lays out how the recovery is to be divided and it has to be followed. So even if the Will says everything goes to the Foundation for Poodles, the recovery would be divided among the family members according to the provisions of the statute.
Unlike some statutes in other states, Kentucky law does not limit the amount that can be recovered for a wrongful death claim. As a result, when someone is wrongfully killed and because the statute allows for the recovery of the loss of earning capacity, a wrongful death claim can be substantial.
The statute of limitations for a wrongful death claim is not contained in KRS 411.130 but in KRS 413.180(1) and it states that the wrongful death action must be commenced within one year of the appointment of the personal representative.
ARTICLE 23. CAUSES OF ACTION: WRONGFUL DEATH
Chapter 1. Wrongful Death Generally
IC 34-23-1-1 Death from wrongful act or omission
of one is caused by the wrongful act or omission of another, the personal
representative of the former may maintain an action therefor against the latter, if
the former might have maintained an action had he or she, as the case may be,
lived, against the latter for an injury for the same act or omission. When the
death of one is caused by the wrongful act or omission of another, the action
shall be commenced by the personal representative of the decedent within two (2) years, and the damages shall be in such an amount as may be determined
by the court or jury, including, but not limited to, reasonable medical, hospital,
funeral and burial expenses, and lost earnings of such deceased person
resulting from said wrongful act or omission. That part of the damages which is
recovered for reasonable medical, hospital, funeral and burial expense shall
inure to the exclusive benefit of the decedent’s estate for the payment thereof.
The remainder of the damages, if any, shall, subject to the provisions of this
article, inure to the exclusive benefit of the widow or widower, as the case may
be, and to the dependent children, if any, or dependent next of kin, to be
distributed in the same manner as the personal property of the deceased. If such
decedent depart this life leaving no such widow or widower, or dependent
children or dependent next of kin, surviving her or him, the damages inure to the
exclusive benefit of the person or persons furnishing necessary and reasonable
hospitalization or hospital services in connection with the last illness or injury of
the decedent, performing necessary and reasonable medical or surgical services
in connection with the last illness or injury of the decedent, to a funeral director or
funeral home for the necessary and reasonable funeral and burial expenses, and
to the personal representative, as such, for the necessary and reasonable costs
and expenses of administering the estate and prosecuting or compromising the
action, including a reasonable attorney’s fee, and in case of a death under such
circumstances, and when such decedent leaves no such widow, widower, or
dependent children, or dependent next of kin, surviving him or her, the measure
of damages to be recovered shall be the total of the necessary and reasonable
value of such hospitalization or hospital service, medical and surgical services,
such funeral expenses, and such costs and expenses of administration, including
attorney fees. As added by P.L.1-1998, SEC.18.
Wrongful death actions; damages
Sec. 2. (a) As used in this section, “adult person” means an unmarried
(1) who does not have any dependents; and
(2) who is not a child (as defined in IC 34-23-2-1).
(b) If the death of an adult person is caused by the wrongful act or omission
of another person, only the personal representative of the adult person may
maintain an action against the person whose wrongful act or omission caused
the death of the adult person.
(c) In an action to recover damages for the death of an adult person, the
(1) must be in an amount determined by a:
(A) court; or
(2) may not include:
(A) damages awarded for a person’s grief; or
(B) punitive damages; and
(3) may include but are not limited to the following:
(A) Reasonable medical, hospital, funeral, and burial expenses
necessitated by the wrongful act or omission that caused the adult person’s
(B) Loss of the adult person’s love and companionship.
(d) Damages awarded under subsection (c)(3)(A) for medical, hospital, funeral,
and burial expenses inure to the exclusive benefit of the adult person’s estate
for the payment of the expenses. The remainder of the damages inure to the
exclusive benefit of a nondependent parent or nondependent child of the adult
(e) Aggregate damages that may be recovered under subsection (c)(3)(B)
may not exceed three hundred thousand dollars ($300,000). A jury may not be
advised of the monetary limits placed on damages under this subsection. If the
jury awards the plaintiff damages under subsection (c)(3)(B) in an amount that
exceeds three hundred thousand dollars ($300,000), the court shall reduce that
part of the damages awarded to the plaintiff to three hundred thousand dollars
(f) A parent or child who wishes to recover damages under this section has
the burden of proving that the parent or child had a genuine, substantial, and
ongoing relationship with the adult person before the parent or child may recover
(g) In an action brought under this section, a court or a jury may not hear
evidence concerning the lost earnings of the adult person that occur as a result
of the wrongful act or omission.
(h) In awarding damages under this section to more than one (1) person, the
court or the jury shall specify the amount of the damages that should be awarded
to each person.
(i) In an action brought under this section, the trier of fact shall make a
separate finding with respect to damages awarded under subsection (c)(3)(B).
As added by P.L.84-1999, SEC.2.
No. The wrongful death statute specifically excludes punitive damages
from the recovery.
The Kentucky State Bar requires me to say that COURT COSTS AND CASE EXPENSES WILL BE THE RESPONSIBILITY OF THE CLIENT.
The Desmond Law Office is a Louisville, Kentucky personal injury firm that focuses motorcycle, trucking, and auto accidents. We offer effective and aggressive legal representation to accident victims and their families. If you’ve been injured in a car, motorcycle or tractor trailer wreck, contact us now for a free case review.
You have friends telling you to contact their attorney, insurance companies telling you don’t need a lawyer and twenty injury attorneys on television promising you checks.