Arizona’s wrongful death laws can apply whenever a person dies as the result of the negligent, willful and wanton or intentional acts of another. A wrongful death might occur in a motor vehicle crash, from medical malpractice, from a dangerously defective product or even from the care or lack of it in a nursing home.
Arizona’s Wrongful Death Statute
Wrongful death actions in Arizona are controlled by statute pursuant to ARS 12-611 to 12-613. In accordance with A.R.S. Section 2-612, those people who are permitted to bring a wrongful death action include:
- A surviving spouse
- Any of the decedent’s surviving children
- A surviving parent or guardian of the decedent
- The personal representative of any of the above people
- The personal representative of the decedent’s estate
Those who aren’t permitted to bring a wrongful death action include siblings, same-sex partners and those purported to be common law spouses.
Settlement of a Wrongful Death Claim
Arizona Revised Statutes, specifically ARS Section 12-612, controls distribution of any proceeds derived in a wrongful death case. They’re to be distributed in accordance with strict guidelines.
If the decedent’s estate brought the action, the wrongful death lawsuit settlement is payable to that estate. Distribution is where some very significant issues can arise.
A Distribution Issue Scenario
The mother of three children died in a nursing home as a result of inadequate care. A son filed a wrongful death action against the nursing home, but he failed to advise his two siblings accordingly. When the case settled, word leaked out to those two siblings.
One of them looked into the matter, and he learned that indeed the information from the leak was true. He phoned the wrongful death attorney who brought the case. The attorney was stunned. Either he failed to ask whether there were two more children born of the decedent’s marriage, or he was lied to.
The Fiduciary Duty
The person bringing the wrongful death action is acting in a fiduciary capacity and owes anybody else who might receive proceeds from the case the highest duty of trust and care. Arizona Laws under ARS 12-612(C) mandates how wrongful death settlements are to be distributed. A failure to distribute the proceeds in accordance with the statute is a breach of that fiduciary duty.
How the Duty was Breached
It simply isn’t within the one son’s power to settle and terminate the wrongful death case and distribute its proceeds without the consent of the two siblings that were left out of the case. The statutory plaintiff and his or her wrongful death attorney have a fiduciary duty to all beneficiaries who might have a cause of action for wrongful death.
Not only did the other two beneficiaries have the right to participate in the wrongful death case, but they also had the right to retain their own attorneys to represent their interests in it.
The Survival Action
If the decedent survived the accident and then later died as a result of injuries sustained in it, the family also has the right to bring a survival action as an additional count. Compensation from a Wrongful Death, otherwise known as Damages, in a survival action might consist of personal losses to the decedent that include but aren’t limited to lost earnings and pain and suffering.
Many lawyers don’t bring a survival action in conjunction with a wrongful death action. They might be missing some significant damages issues.
The Statute of Limitations
The general rule is that the time limit for bringing a wrongful death action is two years from the date of the decedent’s death. Shorter time periods could apply. There might even be two different time limits for the wrongful death and survival counts. Don’t sleep on your rights. You could be forever barred from proceeding.
Nearly all families have little or no experience in investigation, medical records, complex litigation, legal terminology, standards of care, settlements, trials and releases. The legal prerequisites and complexities involved in a wrongful death case require the legal skills and guidance of a knowledgeable, experienced, responsible and successful wrongful death attorney.
It’s critical that you retain that attorney as soon as possible after a serious or fatal accident.