Birmingham, AL Wrongful Death Attorneys
What is a wrongful death claim?
Under Alabama law, a wrongful death lawsuit may be brought by the personal representative of the decedent when a person is killed as the result of negligence, wantonness, or some other wrongful conduct, such as suffering a car accident death due to someone else’s negligence.
Although originally based on common law principles, wrongful death cases are now governed by the Alabama wrongful death statute, Alabama Code § 6-5-410 (1975), which states that:
(a) A personal representative may commence an action and recover such damages as the jury may assess in a court of competent jurisdiction within the state of Alabama, and not elsewhere, for the wrongful act, omission or negligence of any person, persons or corporation, his or their servants or agents, where by the death of his testator or intestate was caused, provided the testator or intestate could have commenced an action for such wrongful act, omission or negligence if it had not caused death.
(b) Such action shall not abate by the death of the defendant, but may be revived against his personal representative and may be maintained though there has not been prosecution, conviction or acquittal of the defendant for the wrongful act, omission or negligence.
(c) The damages recovered are not subject to the payment of the debts and liabilities of the testator or intestate, but must be distributed according to the statute of distributions.
(d) Such action must be commenced within two years from and after the death of the testator or intestate.
Who may file a wrongful death claim?
Wrongful death claims must be brought by the decedent’s personal representative unless the death involves a minor child in which case the custodial parent can bring the lawsuit. A representative may be named as such under the deceased’s last will and testament. In the event the decedent did not have a will, an administrator can be appointed by the probate court of the decedent’s county of residence.
What damages are recoverable under a wrongful death claim?
Historically, Alabama courts have interpreted Alabama’s Wrongful Death Statute to provide for the recovery of punitive damages only, denying the recovery of compensatory damages. Moreover, although punitive damages are generally not recoverable in cases involving simple negligence, the cases interpreting Alabama’s Wrongful Death Statute, have upheld the imposition of punitive damages for simple negligence if the negligence results in death.
What is the difference between a wrongful death claim and the survival of claim?
In addition to a wrongful death statute, Alabama has a survival statute which states that, at a person’s death, the following claims survive:
(a) all claims upon which an action has been filed;
(b) claims based on contract, express or implied, even if no action has been filed;
(c) personal claims upon which an action has been filed, except for injuries to a person’s reputation.
Alabama Code § 6-5-462 (1975).
Thus, if a person is injured in an accident, but dies from unrelated causes before a lawsuit is filed, the claim for their injury would not likely survive his/her death. On the other hand, if a person is injured in an accident and later dies as a result of those injuries before a lawsuit is filed, a wrongful death claim could be asserted against the wrongdoer. The injury claim would not survive, but the death claim could be filed. Finally, if a person is injured in an accident and later dies as a result of those injuries after a lawsuit has been filed, the injury claim would survive and a wrongful death claim could also be asserted.
We are centrally located in Birmingham, Alabama, right next to the Jefferson County Courthouse and we have the experience and the resources to help navigate you through the Alabama judicial system.