Losing a loved one is never easy, particularly if you rely on that person for financial and emotional support. This type of loss is even more devastating when it occurs due to someone else's carelessness, recklessness, or even an intentional act.
The deceased can no longer take action against the at-fault party responsible for their death, so it is up to those who loved the deceased to hold the liable party accountable and seek the compensation needed to make ends meet and move forward after the loss.
While the Illinois personal injury claims process involves an individual who has been injured as a result of someone else's negligence to seek compensation for the financial and psychological costs of the injury, we are often asked by the family members of someone who has died as a result of someone else's negligence if there is compensation available for their economic and emotional losses. As it turns out, there is.
Here is a look at the state's wrongful death claims process.
What Is Wrongful Death in Illinois?
Illinois law refers to wrongful death as one that occurs as the result of a wrongful act, neglect, or default that, had the deceased survived their injuries, would have entitled them to seek compensation through a personal injury claim.
Wrongful death claimants in Illinois are eligible to seek compensation for the expenses and psychological impacts of the loss that were experienced by the deceased's family members, such as:
- Loss of the financial support that the deceased provided.
- Loss of comfort, society, and consortium provided by the deceased to their spouse.
- Loss of instruction, education, or moral training provided by the deceased to their children.
- The grief, sorrow, and emotional distress the deceased's family members experienced as a result of the death.
The Types of Accidents that Can Result in a Wrongful Death Claim
More than 7,000 people in Illinois die from unintentional injuries each year, making accidental injuries the fourth-leading cause of death in the state, behind only heart disease, cancer, and COVID-19 as the most common cause of death.
Just as there are many ways that an individual can incur an injury in Illinois due to the negligence of another, there are many types of negligence-caused accidents that can result in fatal injuries and give rise to a wrongful death claim, including:
- Motor vehicle accidents involve passenger vehicles, commercial trucks, motorcycles, rideshares, bicycles, scooters, or pedestrians.
- Incidents resulting from nursing home abuse or neglect
- Injuries are sustained due to an error made by a medical provider during an injury or illness treatment.
- Injuries that were the result of an intentional act, such as assault
The Process of Seeking Compensation for Wrongful Death
Illinois's wrongful death claims process requires a personal representative to file the claim on behalf of the family and the deceased's estate.
A personal representative is often a named executor to the deceased's will. For claims involving a decedent who did not have a will, the court can appoint a personal representative to pursue the claim on behalf of the deceased's family members, including their spouse, children, parents, and other family members who relied on them for financial support.
Hiring an Attorney to Assist You With Your Claim
The first step in seeking compensation through a wrongful death claim is to hire an attorney with experience in this type of claim to assist in the process. Unfortunately, many personal injury and wrongful death claimants fail to obtain the compensation they're entitled to because they do not believe they can afford the attorney's services.
Because of the billing method used by most personal injury and wrongful death attorneys, affording legal assistance with a wrongful death claim is not the issue that many people believe it to be.
A wrongful death lawyer will generally use a contingent fee billing method. This method allows the claimant to wait until there is a positive outcome to the claim before paying for the services of their attorney. When you find an attorney to assist you with your claim, they will ask you to enter a contingent fee agreement. This agreement outlines the services to be provided by the attorney and designates a percentage of the compensatory award you receive to be paid to them after the claim.
This ensures the claimant can afford these services, regardless of their financial status, without requiring them to pay a retainer upfront or keep current on monthly bills to continue work on their claim. It also ensures that their legal team will diligently work on resolving the claim, as they do not get paid unless that happens.
Individuals who choose to seek compensation through the wrongful death claims process without the benefit of an attorney generally find themselves quickly overwhelmed with the legal expectations, the high-pressure tactics of insurance claims adjusters, the notion of finding evidence that will prove the claim, and determining how much compensation they're allowed to ask for. The evidence and gathering of medical documentation alone can be more than one person can handle. Attorneys have a legal team to help them with the legwork in proving the claim.
Determining Who Was At Fault
Legal liability refers to the responsibility of compensating others for harm they incurred due to the at-fault party's recklessness or carelessness that caused a fatal accident. Often, a claim is not as simple as having one injured or deceased party and one source of liability.
Many cases feature multiple sources of liability and multiple injured or deceased parties. A wrongful death attorney not only determines all parties liable for causing the accident but will also determine the amount of insurance available for the compensation of those injured and the family members of those killed.
Valuing the Claim
An Illinois wrongful death attorney will establish the value of the claim based on:
- The out-of-pocket expenses incurred as a result of the death, such as the loss of financial support, as well as the expenses of a funeral and burial and pre-death medical expenses that were incurred during the treatment of the deceased's final injuries.
- How much money the deceased was earning before death, is used to put a value on the loss of support.
- The amount of insurance that is available to provide compensation. Liability insurance policies come with policy limits, the maximum amount of insurance money available to compensate claimants. If the claim is valued higher than the limit on the policy, it will likely be impossible to compensate the claim fully. Because limits apply to total liability for the accident, if others were injured and killed in the same accident, they or their loved ones will likely seek compensation from the same pot.
Making a Demand
Once a wrongful death lawyer has established the claim's value, they will demand payment of that value from the at-fault party's insurance provider against the liability policy they have that covers such accidents. For example, if the death that occurred was the result of a car accident caused by a negligent driver, the wrongful death claim will be filed against that driver's auto liability insurance policy.
If the claim involves a decedent whose death resulted from a medical error committed by a health care provider, the claim would be filed against the at-fault provider's medical malpractice policy.
If the claim involved a death that was a result of a slip and fall accident, it would be filed against the at-fault party's homeowner's or renter's policy (if the accident occurred at a residence) or a business liability insurance policy (if the accident occurred on commercial property).
Negotiating a Settlement
When the attorney demands payment for the claim, the claim is assigned to a claims adjuster. This is a professional hired by the insurance company to evaluate claims made against the policies of their insured and determine how much compensation is owed to the claimant. The claims adjuster can accept the insured's liability and pay the claim, or they can deny the claim and notify the claimant of the denial. They also can offer to settle the claim out of court for less than its established value.
If a settlement is offered far lower than the claim's value, the claimant does not simply have to accept it. Instead, they can have their wrongful death attorney negotiate with the insurance provider to get them to increase their offer to a level of compensation that the claimant can accept.
Filing a Wrongful Death Lawsuit
If the at-fault party's insurance provider fails to compensate the claim either by paying the demand or entering a settlement agreement with the claimant, the claim can be filed as a wrongful death lawsuit in civil court, generally within two years of the date of the deceased's death.
However, because some claims involve a death that occurred as the result of an intentional act of violence, the statute of limitations can be tolled while the defendant's criminal case is ongoing. A wrongful death claim can be filed one year after the completion of the criminal case, and within five years of the date on which the death occurred.
Discovery is the phase in the wrongful death claims process in which a lawsuit has been filed, and both sides of the claim are required to allow the other side to see the evidence they hold that supports their version of the event. There are a lot of ways in which this evidence can be obtained, including through witness depositions.
A deposition is a form of sworn, out-of-court testimony that can provide your attorney with information that can lead to even stronger evidence or indicate how a witness' testimony will hold up on the stand. While settlements can occur at any point during the wrongful death claims process, they are particularly common during the discovery phase, when the insurance provider has an opportunity to see the strengths of the case made against their insured.
If a settlement agreement has not been made before the trial arrives, the attorney will present the case to a judge or jury, providing services that include the creation of evidence exhibits, the preparation and delivery of opening and closing arguments, and the examination of eyewitnesses and expert witnesses.
Receiving Your Compensation
At the case's conclusion, the attorney will receive the proceeds of the settlement or award and place those funds in a trust account. They will deduct a percentage from this account for their legal fees as outlined in the contingent fee agreement. They will also use the funds to satisfy medical liens placed on the compensation by health care providers and group health insurers as payment for the services they provide. Once this has been done, the attorney will meet with the claimant to sign paperwork finalizing the case and disburse the remainder of the compensation to the claimant.
The state's wrongful death law dictates that compensation received through a wrongful death claim goes to the deceased's spouse and next of kin according to their dependence on the deceased.
Illinois does not cap the damages that plaintiffs can recover through a wrongful death claim.