Wrongful Death

Jay McDonald attorney

Clawson and Staubes’ litigation team has extensive experience representing individuals and businesses in wrongful death lawsuits in state and federal courts. Wrongful death cases can arise from automobile accidents, trucking accidents, product liability, dram shop and liquor liability, negligent security, and professional malpractice. These cases are complex and emotionally difficult. Thus, retaining an attorney with experience in wrongful death cases is critical in bringing these cases to a favorable result.

Wrongful death cases in South Carolina arise from Section 15-51-10 of the South Carolina Code. This statute states that an estate may bring a wrongful death claim where a person’s death was “caused by the wrongful act, neglect or default of another.” Pursuant to the Code, wrongful death actions are brought for the benefit of the decedent’s spouse and children. If there was no spouse or children, the wrongful death suit is brought on behalf of the decedent’s parents.

Any damages recovered in a wrongful death action will be divided among the spouse, children, parents, and/or heirs according to the shares that they would have been entitled to if the person had died without a will. Generally, the damages available in a wrongful death lawsuit are those incurred by the survivors and can include the following:

  • Medical expenses incurred by the deceased
  • Funeral costs
  • Loss of financial support and benefits
  • Loss of household services, loss of companionship
  • Pain and suffering, and even punitive damages.

In some cases, the representative of an estate may bring a “survival action” with the wrongful death claim under Section 15-5-90 of the South Carolina Code. Unlike wrongful death claims that are made for the family members’ benefit, survival actions are made for the benefit of the deceased. South Carolina’s survival action statute allows a person who has been fatally injured, but doesn’t die right away, to recover for damages incurred during the time between the accident and the person’s death, even if just for instant. Damages in a survival action include recovery for conscious pain and suffering, emotional distress, medical expenses, and funeral expenses.

An important distinction between wrongful death and survival actions is how they are taxed. Generally, any damages awarded under a wrongful death action are not part of the estate, and therefore are not taxable. On the other hand, damages awarded in a survival action become part of the estate, and are therefore subject to the inheritance tax.

Wrongful death cases are multifaceted. A thorough investigation must be started almost immediately in order to preserve critical evidence in a fatality. For example, autopsies are sometimes necessary to determine the exact mechanism and cause of death. There is the issue of whether the decedent died instantly or may have a “survival action.” Even in cases where the cause of death may seem obvious, specific findings on autopsy can make all the difference in the outcome of your case. Additionally, interviewing key witnesses can be a critical component of the case and these interviews should be conducted as early as possible. Because key evidence must be preserved, a prompt and thorough investigation can be the difference between a favorable and unfavorable result in your case.

Our attorneys have the experience and knowledge necessary to help bring your wrongful death case to a favorable outcome. Please contact Clawson and Staubes for all of your wrongful death needs.

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