Damages that can be Recovered in a Death Claim

The wrongful death statute is very specific about what damages may be recovered in a wrongful death or survival claim.
Surviving Spouse. A surviving spouse may recover the following damages in a death claim:


1. Pecuniary loss — the loss of the care, maintenance, support, services, and advice the spouse would have received from the deceased spouse had the spouse lived.


2. Loss of companionship and society — the loss of the benefits flowing from the love, comfort, companionship, and society the spouse would have received from the deceased spouse had the spouse lived.

3. Mental anguish — the emotional pain, torment and suffering experienced by the spouse due to the death of the deceased spouse.


4. Loss of inheritance/loss of addition to the community estate — the loss that the deceased spouse would have added to the estate at the end of his or her natural life.

Surviving Child. Like a spouse, a surviving child may also recover for pecuniary loss, loss of companionship and society, mental anguish, and loss of inheritance.

Surviving Parents. Surviving parents may seek pecuniary loss, loss of companionship and society, and mental anguish damages.
Exemplary Damages. A surviving spouse or child may also be entitled to exemplary damages if the defendant acted with malice or committed some other act entitling the survivors to exemplary damages.
Survival claims. In addition to those claims that the family members can make for their own damages, the estate of the deceased may also make a claim to recover the medical and funeral expenses incurred by the deceased and for any pain and mental anguish the deceased experienced between the time of injury and death. A big issue in survivor claims is whether the deceased immediately died in the collision or incident. If the deceased immediately died or was not conscious, then the estate is generally not allowed to recover any damages for the deceased’s mental anguish. On the other hand, if the deceased did not immediately die, then the estate can recover mental anguish damages.


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The stories and situations mentioned on this blog are for informational purposes only. The Burnett Law Firm does not claim to represent any party referenced in this post. This blog exists to raise public awareness of the very real dangers we face every day and to serve as a central location where information and opinions can be exchanged with regard to the way that the situations mentioned on this site are impacted by existing legal statutes.

Your Property Damage Claim

The two biggest questions in resolving automobile property damage claims are: (1) Can your vehicle be repaired or is it totaled? (2) Does the other party have insurance?



The insurance companies generally have the choice to decide whether they want to attempt to repair your vehicle or whether they will “total it” — pay you the current market price for the vehicle instead of having it repaired. Once they make that decision, it will dictate how you proceed.

If the car will be repaired

In most instances, the person who hits you will have insurance, and the insurance company will choose to repair your car instead of replacing it. If that’s the case, the first two steps are to get an estimate from the insurance company and to find a body shop to make the repairs. While the insurance company may recommend their preferred body shops, you are free to choose the body shop that you trust.

Once you have the estimate and have chosen the body shop, the process usually runs fairly smoothly. While the original estimate is rarely accurate, most body shops and insurance adjusters will work well together to work out the differences. But to protect yourself, make sure you tell your body shop not to do any work without your approval if that work, for some reason, will not be paid for by the insurance company.


The opposing party’s insurance company will also pay for a rental vehicle. In most cases, the vehicle will be a modest standard car. However, in some cases, it is important for the client to have something other than the standard vehicle. For example, you may be a construction worker and need a pickup, or you may have four kids and need a mini-van. In those instances, the insurance company should provide you with a comparable vehicle. In some instances, there are disputes about how long the client should have rented a vehicle. To avoid this, do your best to not try and take advantage of the situation. Call the body shop to make sure they are repairing the vehicle in a timely manner, and keep in contact with the property adjuster so you do not have any surprises at the end of the rental.

The opposing party’s insurance company may also be liable for any decrease in value of your vehicle that results from the wreck. If you believe your vehicle’s value has significantly decreased, you should get some estimates from dealers or others that can help you prove this loss of value to the adjuster.

If your vehicle is repairable, but the other party does not have insurance, then you may make a claim on your policy if you have applicable coverage. If you have purchased both collision coverage and uninsured/underinsured motorist (UM/UIM) coverage, you will have the option of making a claim on the collision portion of your coverage or the UM/UIM portion of your policy. The key considerations in making that decision is which portion of your coverage has a smaller deductible, what are your policy limits for each coverage, and whether you have rental car coverage on your collision coverage.


All things being equal, you would normally choose to use the portion of your coverage with the smaller deductible, but often, things are not always equal. One factor is the limits of the coverage. On each provision of your policy, there is a maximum dollar value that the insurance company can be forced to pay regardless of the amount of damage to your vehicle. Occasionally, your collision and UM/UIM limits will be different. If the damage to your vehicle is significant, then the amount of the limits for each portion of the policy may dictate which avenue you choose.

Finally, if you have not purchased rental car insurance as part of your collision insurance, then you will be obligated to pay for a rental vehicle. However, if the claim is made under the UM/UIM provisions, then the insurance company is obligated to pay for the rental coverage.


If you are making a claim on your own policy, then you are not entitled to loss of value to the vehicle.


If the vehicle is totaled

If the cost of repairs exceeds the value of the vehicle, then your insurance companies will “total” the vehicle, and they will be obligated to pay the market value of the vehicle plus tax, title and license to purchase a comparable vehicle.


Generally, the biggest dispute when a vehicle is totaled is what is the value of the vehicle. Insurance companies have traditionally used the Kelly Blue Book or the NADA guide to determine values. In recent years, they have turned to services that offer computer valuations of vehicles. Since these services’ main customers are insurance companies, there is good reason to be suspicious about the values provided.


In the past, people did not have many good alternatives for disputing the values offered by the insurance companies. However, in this day and age of the internet, you will be able to do your homework and have a good idea of the value of your vehicle. Both NADA.com and intellichoice.com offer average retail prices for vehicles. In addition, sites such as autotrader.com let you search for vehicles for sale within 50 or 100 or more miles from your zip code. These sites will let you get and idea of what a replacement vehicle actually costs in your area. With a little research, you should be able to get some documentation and present something to the adjuster to attempt to maximize the value offered to you.


Unfortunately, when your vehicle is totaled, insurance companies are not obligated to pay for your rental fees, though many will pay for a vehicle until they make an offer to you. As a result, it is important to do as much work as possible as soon as possible so you do not incur any unnecessary fees.


If you have been in an accident and you would like to speak with someone reguarding your claim please give us a call. We are Board Certified meaning "Specialist" in Personal Injury Law. We will provide you great services and fight your case to the end. Toll free 800.501.2091

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The stories and situations mentioned on this blog are for informational purposes only. The Burnett Law Firm does not claim to represent any party referenced in this post. This blog exists to raise public awareness of the very real dangers we face every day and to serve as a central location where information and opinions can be exchanged with regard to the way that the situations mentioned on this site are impacted by existing legal statutes.