Wrongful Death and Survival Actions
Our law firm represents clients from all walks of life. Each case is different, which requires that our firm provide legal advice specific to each case and each circumstance. When a person has been killed in an accident, state and federal law specifically dictates: 1) the individuals who are authorized to bring a lawsuit on behalf of the deceased, 2) the individuals who are the beneficiaries that are entitled to recover any damages, and 3) the types of damages that are recoverable. Depending on the circumstances of the accident that caused the person’s death, federal law or state law may apply.
Federal Employer’s Liability Act (Railroad Employee Deaths)
If your loved one was a railroad worker killed in the line of duty by the fault of the railroad, the case against the railroad company will arise solely under the provisions FELA. Under FELA, the individual with the authority to bring a lawsuit is the Personal Representative of the deceased’s estate. For that reason, before a lawsuit can be filed, a succession or estate proceeding must be opened in the state court where the deceased was domiciled. The state court must then appoint the Personal Representative.
In many cases, the Personal Representative will be the surviving spouse. However, in cases where the deceased was unmarried or had no children, other individuals may be appointed Personal Representative. Once appointed, the Personal Representative is named as the Plaintiff in the litigation and is authorized to make final decisions regarding the lawsuit. Though it is common for the Personal Representative to also be a beneficiary, who will actually receive any damages recovered in the lawsuit, this is not always the case. Beneficiaries may include a surviving spouse and children. If there are none, beneficiary status will extend to surviving parents, but no further.
Damages recoverable under FELA include: Funeral Expenses, Loss of Financial Support, Loss of Services, Grief, Love and Affection. In addition, any Conscious Pre-Death Mental and Physical Pain and Suffering sustained by the deceased is recoverable as part of the Survival Action.
Most commonly, when a person is killed in an accident, Louisiana’s law for Wrongful Death and Survival Actions will apply. Pursuant to the Louisiana Civil Code, if a person dies due to the fault of another, a lawsuit may be brought by the surviving spouse and children. If a person dies without a spouse or children, Louisiana law provides for other relatives to assert rights. Importantly, Louisiana law sets forth classes of beneficiaries, who are allowed to recover damages to the exclusion of all other relatives.
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