Wrongful Death Questions

The wrongful death of a loved one has a devastating effect on the person's surviving family and friends. Wrongful death is not necessarily intentional act, but often is a result of someone’s negligence or recklessness. Wrongful death cases differ from a “standard” personal injury case because they are subject to the rules and limitations of the wrongful death statute. They are also complicated because they include elements of probate practice. It is important to have an attorney who understands the ins and outs of this complex practice. In addition to the frequently asked questions below, see the general Wrongful Death page for more information. Please contact me right away at 503-546-461 or jpl@pdxinjury.com  if you or someone you know has recently suffered the loss of someone due to his or her wrongful death.

What is the statute of limitations?

The statute of limitations in wrongful death cases is three years from the date of death, unless the claim is against a public body subject to the Oregon Tort Claims Act; then, the statute runs out after two years.

Who can file a wrongful death lawsuit?

Only the personal representative of the estate of the deceased person can file a lawsuit. The wrongful death statute provides a preference in appointing a personal representative. ORS 113.085 states that the court shall appoint a qualified person it finds suitable as personal representative, giving preference in the following order: (a) The executor named in the will; (b) the surviving spouse of the decedent or the nominee of the surviving spouse; (c)The nearest kin of the decedent or the nominee of the nearest kin; (d) The Director of human Services or The Director of the Oregon Health Authority if the decedent received public assistance; (e) The Department of Veterans' Affairs in some instances; or any other person the court chooses.

What qualifications must a personal representative possess?

A person is qualified to act as personal representative of the decedent’s estate, unless he or she is:

  • An incompetent;
  • A minor;
  • Suspended for misconduct or disbarred from practicing law during the time of suspension or disbarment;
  • Resigned from the Oregon State Bar when professional misconduct charges are under investigation or disciplinary proceedings are pending against the person until that person is reinstated;
  • A judge of the circuit court, Oregon Tax Court, Oregon Court of Appeals or Oregon Supreme Court; or
  • A licensed funeral service practitioner, unless the decedent is:
    • A deceased relative of the licensed funeral service practitioner; or
    • A deceased licensed funeral service practitioner who was a partner, employee or employer in the practice of the licensed funeral service practitioner who is petitioning for appointment as personal representative.

What is comparative negligence?

Comparative negligence, or comparative fault, is when both parties are found to be partially at fault. The amount between all the parties must equal 100%. If the decedent is found to be partially at fault, it may reduce the damages awarded by the percentage he or she was deemed at fault.

What is pecuniary loss?

Pecuniary loss falls under economic damages and is the loss of financial support the decedent would have provided to his or her surviving family members, had the decedent lived. Pecuniary loss also applies to care and services a decedent would have provided, such as a parent to a child, including moral training and overseeing the child’s education. Additional services include housekeeping, cooking, maintenance, pet care, yard work and basic duties or companionship of a spouse or partner. A jury would determine the value of these services.

What is an ERISA plan?

The Employee Retirement Income Security Act, or ERISA, covers most insurance plans for health, disability and pensions through private employers. ERISA health plans are becoming more aggressive in their attempts to recover medical expenses from plan members for whom they have provided medical benefits. ERISA’s claims for reimbursement, especially in wrongful death cases, may take up a large portion of the case’s settlement funds.

Is there a limit in damages I may recover?

Under Oregon law, the noneconomic damages (loss of care, comfort, and companionship and society and loss of consortium) awarded to the beneficiaries in a wrongful death action are limited to $500,000. There is no limit to the award of economic or punitive damages, however.

What are future economic damages?

Had the decedent not died, and he or she would have, presumably, continued to work, the survivors may be awarded future pay the decedent would have earned. To determine the amount lost, one must use the decedent’s most recent income and take the amount if it were invested at a reasonable interest rate and over the period of the decedent’s likely life expectancy.