The harm caused by the wrongful death of a loved one is incalculable for the surviving family members. Though it may seem impossible and almost crass to do in light of the priceless loss of life of a loved one, it is necessary to calculate damages.
To help you understand damages and how they relate to a wrongful death claim in New Mexico, contact the Albuquerque wrongful death attorneys at Collins & Collins, P.C. at (505) 242-5958 or online.
Most importantly, understand what compensation you are entitled to and how to obtain it through a wrongful death claim.
In the meantime, we hope that the information here is helpful.
What are Damages?
Damages are all the injuries, losses, expenses and other harm resulting from the wrongful death. In New Mexico, there are well established jury instructions on what damages may be recovered in a personal injury action. A wrongful death claim is at its essence a personal injury claim. As such, the jury instructions for personal injury damages apply equally to wrongful death.
Though the jury instructions are the same in both personal injury and wrongful death actions, the makeup of the damages are likely to differ significantly. In addition, the damages for wrongful death will in most cases greatly exceed those in a personal injury claim involving similar circumstances absent the death of the victim.
Recoverable Damages in a Wrongful Death v. Personal Injury Claim
In a personal injury action, the primary recoverable damages include compensatory damages, medical expenses (both past and future), pain and suffering, loss of consortium, and on rare occasions, punitive damages. Upon review of these damages, it is clear how the damages calculation will differ significantly in a wrongful death action versus a personal injury action.
For instance, there will be no future medical expenses. Regarding damages for pain and suffering, there might be an award for pain and suffering by the victim up to the death, but there will be no ongoing pain and suffering for the victim. Keep in mind that pain and suffering type damages might be available under limited circumstances where the survivors witnessed the death.
Compensatory v. Punitive Damages
The compensatory damages include many elements and will vary somewhat between the two types of claims. These damages are to compensate for losses. Punitive damages are meant to punish and to deter future similar conduct. Punitive damages will vary in their calculation as a multiplier of compensatory damages. However, just as with personal injury claims, punitive damages are rarely awarded or even presented to the jury in a wrongful death claim.
Loss of Consortium Significant in Wrongful Death Case
Loss of consortium for the surviving loved ones can be a significant portion of damages in a wrongful death action. In personal injury actions, the decision to bring a loss of consortium claim is more difficult.
This is because the discovery on the loss of consortium claims can be quite invasive and sometimes humiliating with the defendant attempting to attack every aspect of the relationship between the victim and the spouse. As a result, unless the loss of consortium is significant, it may not be worth it.
In a wrongful death action, the loss of consortium is huge due to the loss of a spouse, child or parent. This can in fact be the greatest harm to the surviving loved ones.
Loss of Income Often Large Part of Damage Award in Wrongful Death
All of these losses and harms are huge. However, it may come as a surprise to many that the greatest element of damages in a wrongful death case is loss of income. Loss of income calculations in personal injury actions can be much more difficult due many complicating factors such as the possibility of replacement earnings by the victim. In the case of death, there simply is no more income.
The loss of income calculation will depend on many factors. The ultimate calculation is income earning potential over the projected remaining life expectancy of the deceased. As such, the age of the deceased is very important. So too is the income earning capacity for the person. The higher the income earning capacity, the higher the expected lifetime of earnings.
Income earning capacity will be estimated by an expert economist. This will take into account the educational background, the avocation or profession of the deceased, the earnings at death, the history of earnings, and so on. It is not hard to calculate the immense losses of income even for a younger person earning minimum wage. The math at its heart is fairly straightforward for such a case with the loss of earnings calculated as annual wages (factoring in increases in wages over time) times the number of years to average life expectancy.
The calculation can get very complicated pretty quickly for upwardly mobile professionals and other high income individuals. This is why an expert economist is necessary. However, for younger workers and workers that are in their prime with a number of years remaining in their income earning lifetime, the loss of earnings can be enormous.
Do Not Delay in Contacting an Attorney
As always, we will close with a few cautions. First, there are deadlines on wrongful death claims just like any other personal injury claim. Second, these cases are complex and require the assistance of an attorney experienced in wrongful death claims.
Finally, it is very unwise in these situations to deal directly with the opposing party or the opposing insurance company. There is far too much at stake for the surviving family for any miscues.
Other Sources of Information on Wrongful Death and Damages: