A fatal crash is devastating, and families often face legal and financial questions at the same time as grief. Civil wrongful death claims can provide compensation and accountability, separate from any criminal case.
Civil and criminal cases are separate
The criminal case, brought by prosecutors, seeks punishment such as jail. A civil wrongful death claim, brought by the family or estate, seeks compensation. A criminal conviction can help prove liability in a civil case, but a civil claim can proceed even if no charges are filed or the defendant is acquitted, because the burden of proof is lower.
Common theories of liability
- Negligent driving, such as speeding, distraction or running a red light.
- Drunk or drugged driving.
- Dram shop or social host liability against establishments or hosts that served an intoxicated person, in states that allow it.
- Commercial vehicle or employer liability.
- Defective vehicle parts or road design.
Types of compensation
- Funeral and burial costs.
- Medical expenses before death.
- Lost income and benefits.
- Loss of care, guidance and companionship.
- Pain and suffering of the deceased in survival claims.
- Punitive damages in some cases involving drunk driving or reckless conduct.
Insurance limits and other sources
The at-fault driver's liability limits may be far lower than the family's losses. Other sources may include underinsured motorist coverage, employer insurance if the driver was working, dram shop coverage and claims against other responsible parties. A lawyer can investigate all possible sources.
Evidence to preserve
Police and crash reports, photographs, vehicle data, witness statements, toxicology results, receipts and employment records all matter. Ask investigators to preserve vehicles and data. A lawyer can send preservation letters to prevent loss of evidence.
Dealing with insurers and the media
Insurance adjusters may contact families early. Be cautious about statements and releases. Avoid posting about the crash or the case online. Refer calls to your lawyer. Take time to grieve while professionals handle communications.
Support and time limits
Victim advocates, counseling and support groups can help families. Wrongful death deadlines are often short, so seek legal advice promptly. Many lawyers offer free consultations and handle cases on contingency.
Real-life scenarios
- A family sues the driver and a bar that overserved him, in a state with dram shop law.
- A family learns that the at-fault driver's insurance is low and pursues underinsured coverage.
- A criminal acquittal does not prevent the family from bringing a civil claim.
Common mistakes to avoid
- Waiting too long.
- Talking to insurers without advice.
- Not preserving evidence.
- Assuming a criminal case covers compensation.
- Ignoring other responsible parties.
- Signing releases quickly.
Questions to ask a professional
- Who may be responsible?
- What coverage is available?
- Can punitive damages apply?
- How do criminal and civil cases interact?
- What deadlines apply?
A practical action plan
- Secure records and death certificates.
- Consult a wrongful death lawyer promptly.
- Preserve evidence and avoid statements.
- Identify all insurance sources.
- Coordinate with the estate and probate court.
Terms you may hear
- Dram shop liability: responsibility of those who serve alcohol to intoxicated people.
- Punitive damages: damages to punish reckless conduct.
- Survival claim: a claim for the decedent's own losses.
- Underinsured motorist coverage: coverage for the gap above the at-fault driver's limits.
- Preservation letter: a demand to keep evidence.
Evidence that disappears quickly
Vehicle data recorders, surveillance video and bar receipts can be overwritten or discarded within days or weeks. Ask a lawyer promptly to send preservation letters to the other driver, the vehicle owner, any business that served alcohol and the employer if the driver was working.
Coordinating with the criminal case
Prosecutors may share information with the family and ask about restitution. The civil case should proceed separately, though timing may be coordinated. Your lawyer can advise on how statements in one case may affect the other.
Protecting the family's finances
Funeral costs, lost income and mortgage payments can create immediate pressure. Ask about assistance from victim compensation funds, life insurance, survivor benefits and employer benefits while the claim is pending. Keep receipts for all expenses.
Frequently asked questions
Can we sue if the driver was not charged?
Yes, a civil claim is separate.
Can we sue a bar that served the driver?
In some states, under dram shop laws.
What if the driver died too?
Claims may proceed against the driver's estate and insurance.
Are punitive damages available?
In some cases, especially involving drunk driving.
How long do we have to file?
Often two years from death, but check your state.