When a loved one dies as the result of the fault of another, Arizona law provides a remedy in the form of its wrongful death statutes. Unlike most personal injuries, the common law of England, from which our personal injury law descends, did not recognize death as an injury for which those left behind could sue and recover damages. As a result, legislatures, including Arizona’s, passed wrongful death statutes to create a remedy. Since wrongful death claims are a creature of statute, they vary from state to state and depend entirely on the provisions of the wrongful death statute of the state in which the death occurs.
Arizona’s wrongful death law is found in the Arizona Revised Statutes beginning at Section 12-611 and running through 12-613,
In Arizona, a wrongful death is one involving conduct for which, had the decedent survived, she or he would have been able to sue and recover damages. The people or entities who would have been responsible for paying damages to the decedent, must pay them to the persons entitled to bring the wrongful death claim. The wrongful conduct can involve negligence or an intentional act, including murder and manslaughter.
The legislature has made decisions about who can bring a wrongful death action. It does not include all of the people who might be most affected by the death. For example, no matter how long a couple may have lived together, unless they were actually legally married, the surviving partner cannot bring a wrongful death action or receive damages for the death. Those entitled to bring a wrongful death action and recover damages in Arizona are the parents of the decedent, the spouse, and the decedent’s children, both natural and adopted. No recovery is allowed for brothers, sisters, aunts, uncles or grandchildren. In the event no one listed by the legislature survives the decedent, his or her estate can bring a wrongful death action, although the damages will be different than those to which a real person might be entitled and any recovery will be subject to the debts of the estate. As long as the wrongful death claim is not brought by the estate of the decedent, any recovery is not subject to the debts of the decedent, including the medical bills incurred at the end of life.
Only one person may bring the action for wrongful death. That person acts as the statutory trustee and must bring the action for the benefit of themselves and all of the other people who may collect damages as provided by the legislature. Those allowed by the legislature to recover wrongful death damages are called the statutory beneficiaries.
Not all of the family members left behind suffer equally when a loved one dies. For example, if mom has lived with daughter A for years and only saw daughter B once or twice a year, it is pretty clear that daughter A has suffered a greater emotional loss than has daughter B. The legislature has provided that the damages for wrongful death shall be divided among the beneficiaries in proportion to their individual losses.
Arizona’s wrongful death statute is vague about how to measure the damages resulting from a death. It states that the jury “shall give such damages as it deems fair and just with reference to the injury resulting from the death to the surviving parties who may be entitled to recover, and also having regard to the mitigating or aggravating circumstances attending the wrongful act, neglect or default.” While the damages can include the lost wages of the decedent for those who relied on the decedent’s income, they cannot include the decedent’s medical bills without exposing the recovery to the debts of the decedent, including medical liens.
If a wrongful death claim goes to trial, the jury will decide how much each of the statutory beneficiaries has lost as a result of the death. The jury has complete discretion here and may decide that a particular beneficiary has not suffered any loss at all and may award that person nothing.
In the event of a pre-trial settlement, the beneficiaries must decide among themselves how to divide up the settlement amount. If there are minors involved, the probate court must approve the overall settlement, the attorney’s fees, and the allocation to the minors to make sure the minors are being treated fairly. No settlement which involves minor claimants can be final until approved by the court.
It is a sad fact of life that family members do not always get along. Mother or father may not like the person their child married. Siblings may fight and argue among themselves. Sister Joan may not have spoken to brother Frank in years. Parents may divorce and hate each other. These family conflicts can greatly affect a wrongful death action. Who is going to be in charge of the claim? In the event of a settlement, how will the settlement proceeds be divided among the statutory beneficiaries?
The first person to file is the only plaintiff allowed by law so in the event of family discord, there may be a race to the courthouse. The plaintiff must act fairly on behalf of all but individual family members are entitled to their own lawyers to present their damage claims at trial. It is clearly best if the family members can agree at the outset how any settlement will be divided. Waiting until there is money on the table before deciding on a distribution plan is a recipe for disaster and family friction.
I hope you never have to confront a wrongful death, but if you do, you should consult an experienced attorney as soon as you can. There are a lot of things to consider and the sooner you begin to address these issues, the better. This is even more important if you think the death of a loved one was caused by medical malpractice as an autopsy may be necessary to prove the elements of the claim.
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