CLOSE X
RSS Feed LinkedIn Instagram Twitter Facebook
Search:
FMG Law Blog Line

Posts Tagged ‘death’

Wrongful Death Versus Survival In California

Posted on: December 11th, 2018

By: Matthew Jones

There are many differences between a wrongful death action and a survival action. A wrongful death action may be filed by the personal representative of the decedent’s estate or the decedent’s surviving spouse/children. A survival action may be filed by the estate’s personal representative or the decedent’s successor-in-interest. The determination of whether to file one action versus the other depends on whether the decedent immediately died from the alleged injuries/incident. If he/she did, then a wrongful death action is the proper claim. If he/she did not, then a survival action is likely the proper claim.

When defending against a wrongful death or survival action, it is imperative to keep in mind the types of damages available to the plaintiffs. In a wrongful death action, the plaintiffs are entitled to compensation for loss of support, loss of services, funeral and burial expenses, loss of companionship, and sexual cohabitation. In a survival action, the plaintiffs are entitled to a much different set of damages, specifically, those damages that would have been available to decedent had he/she survived the alleged injuries/incident. These damages may include medical expenses and loss of earnings, to name a few. The plaintiffs essentially step into the shoes of the decedent and assert the claims he/she would have had.

Despite the various damages that are recoverable in a wrongful death action, punitive damages are only available in a survival action. It is important to identify if punitive damages are alleged in the Complaint and determine the type of claim being asserted: wrongful death versus survival. If punitive damages are alleged and it is a wrongful death action, it is necessary to move to strike the claim or move for summary adjudication on the issue.

If you have any questions or would like more information, please contact Matthew Jones at [email protected].

Georgia Supreme Court Grants Certiorari In Failure to Settle Case

Posted on: June 25th, 2018

By: Bill Buechner

The Georgia Supreme Court recently granted an insurer’s petition for certiorari in a bad faith failure to settle case to consider what constitutes an offer to settle a claim within policy limits and whether an insurer’s duty to settle arises only when the claimant presents a valid offer to settle within policy limits.  First Acceptance Ins. Co. of Georgia, Inc. v. Hughes, 2018 Ga. LEXIS 407 (June 4, 2018).

In Hughes, the insured caused an automobile accident that resulted in his death and injured others, including the claimants (a mother and her minor child, who sustained a traumatic brain injury).   The limits on the policy were $25,000 per person and $50,000 per accident.   After the insurer sent a letter to the claimants’ counsel (and other injured parties) requesting a settlement conference, the claimants’ counsel sent a response letter to the insurer on June 2, 2009 stating that they were “interested in having their claims resolved within your insured’s policy limits and in attending a settlement conference[.]”  The 6/2/09 letter from the claimants’ counsel also explained that the claimants had uninsured/underinsured motorist coverage in the amounts of $100,000 per person and $300,000 per accident.  The 6/2/09 letter continued:

Of course, the exact amount of UM benefits available to my clients depends upon the amount paid to them from the available liability coverage.  Once that is determined, a release of your insured from all personal liability except to the extent other insurance coverage is available will be necessary in order to preserve my clients’ rights to recover under the UM coverage and any other insurance policies.  In fact, if you would rather settle within your insured’s policy limits now, you can do that by providing that release document with all the insurance information as requested in the attached, along with your insured’s available bodily injury liability insurance proceeds.

The accompanying letter from the claimants’ counsel, also dated June 2, 2009, requested various insurance information within 30 days and stated that “[a]ny settlement will be conditioned upon [the] receipt of all the requested insurance information.”

Counsel for the insurer did not consider the letter from the claimants’ counsel as an offer to settle within policy limits and thus did not respond to the letter.   On July 10, 2009 (38 days later), the claimants filed a lawsuit.  On July 13, 2009 ( 41 days later), counsel for the claimants sent a letter to the insurer stating that the 6/2/09 offer to settle within policy limits was withdrawn.  The claimants thereafter obtained a jury verdict in July 2012 awarding $5,334,220 in favor of the minor child.

An administrator for the insured’s estate filed a lawsuit against the insurer asserting that the insurer negligently or in bad faith had failed to settle the minor child’s claim within policy limits.   The trial court granted summary judgment in favor of the insurer, but the Court of Appeals reversed and concluded that there were material issues of fact as to whether the 6/2/09 letters from the claimants’ counsel offered to settle the minor child’s claims within policy limits and whether the offer included a 30-day deadline for a response.  Hughes v. First Acceptance Ins. Co. of Ga., Inc., 343 Ga.App. 693, 697, 808 S.E.2d 103 (2017).

The Georgia Supreme Court granted the insurer’s petition for certiorari and stated that it was particularly concerned with (1) whether there were material issues of fact as to whether the 6/2/09 letter from the claimants’ counsel offered to settle the minor child’s claim within the policy limits and established a 30-day deadline to accept the offer; and (2) whether the insurer’s duty to settle arises “when it knows or reasonably should know settlement within the insured’s policy limits is possible with an injured party or only when the injured party presents a valid offer to settle within the insured’s policy limits?”

The Georgia Supreme Court’s rulings on these issues likely will have a significant impact on Georgia insurers and their exposure to negligent or bad faith failure to settle claims.  Oral argument has been scheduled for September.

If you have any questions or would like more information, please contact Bill Buechner at [email protected].

Multi-Million Dollar Jury Award Reduced Because Man Died While Having Sex with Multiple Partners

Posted on: June 15th, 2012

By: Scott Rees

A cardiologist was found liable for failing to warn his patient to avoid strenuous physical activity.  Shortly thereafter, the decedent engaged in strenuous activity — a “threesome.”  The patient died in the act.

The jury awarded the decedent’s family $5 million.  However, the jury decided that the decedent was 40 percent responsible for his own death by participating in the sex act, thereby reducing the award by $2 million.

Morals obviously still play an important and expensive role to juries here in the south, although less than some might have thought given the facts of this case.

Please visit the below link to read more about the trial.

 Jury Awards $3 Million in Man’s Sex Death