How to File a Wrongful Death Case in North Carolina

While not all wrongful death cases are the same, they typically proceed in the following manner.

Step 1: Determine Who Has Authority to File the Wrongful Death Claim

One of the most important differences between an ordinary personal injury case and a wrongful death case is who is allowed to file the lawsuit.

In North Carolina, a surviving spouse, child, or parent ordinarily does not file a wrongful death lawsuit simply because that person is a close family member. According to state law, the claim must be brought by the deceased person’s personal representative. The personal representative is generally the person legally authorized to administer the deceased person’s estate. In North Carolina this person is either an Executor or an Administrator.

What If My Loved One Had a Will?

If the decedent left a valid will naming an Executor, that person may generally seek to qualify as the executor and personal representative.

Being named in the will does not necessarily mean the person automatically has legal authority to act. Estate administration normally involves qualifying through the office of the clerk of superior court.

What If There Was No Will?

When someone dies without a will, an eligible person may seek appointment as the Administrator of the estate. Once properly appointed, the administrator acts as the estate’s personal representative and may have authority to pursue the wrongful death claim.

This probate-related step is one reason families should speak with an attorney early. A claim can exist even when no estate has yet been opened, but the correct person needs legal authority to pursue it.

Step 2: Investigate How the Death Occurred

A wrongful death case still requires proof that another party was legally responsible. In a negligence case, this will generally involve establishing that the defendant owed a legal duty, failed to meet that duty, and caused the injuries that resulted in death.

The required evidence depends on what happened. After a fatal motor vehicle collision, for example, an investigation might involve:

• Police crash reports
• Photographs and video from the scene
• Vehicle damage
• Witness statements
• Surveillance or traffic-camera footage
• Cell phone records
• Event data recorder information
• Commercial driver’s records
• Trucking company records
• Toxicology evidence
• Accident reconstruction

Other wrongful death claims may require medical records, product evidence, property maintenance records, employment documents, expert opinions, or other forms of proof.

Evidence can disappear surprisingly quickly. A wrongful death lawyer can take steps to preserve important evidence while investigating who may be responsible.

Step 3: Identify Every Potentially Responsible Party

The person most obviously connected with a fatal accident is not always the only party that may be legally responsible.

Consider a fatal commercial truck accident. Possible defendants could include:

• The truck driver
• A trucking company
• Another motor carrier
• A maintenance provider
• A cargo-loading company
• A manufacturer of defective equipment
• Another negligent driver

Similarly, a fatal premises liability case could potentially involve a property owner, management company, contractor, security provider, or another business.

Identifying every responsible party is important for two reasons. First, it helps ensure that everyone who contributed to the death is held accountable. Second, multiple defendants may mean multiple sources of insurance or assets are available to compensate the family.

Step 4: Determine What Damages the Family Can Seek

Families are sometimes approached by an insurance company shortly after a fatal accident. A quick settlement may seem attractive at a time when bills are arriving and the family is emotionally overwhelmed. However, wrongful death damages can involve losses extending decades into the future.

North Carolina’s wrongful death statute provides a comparatively detailed description of the damages that may be recovered. These damages are not limited to the deceased person’s final medical bills or funeral expenses. They may also include:

• Medical care and treatment before death
• The decedent’s pain and suffering
• Funeral expenses
• Lost income
• Loss of services, care, protection, and assistance
• Loss of companionship

Matters related to income are not the only ones that may require compensation. A stay-at-home parent, retired spouse, child, or person earning relatively little may still have tremendous value to the people who loved and depended on them.

Punitive damages may also be available in certain particularly serious cases. Their purpose is not primarily to compensate a family for a measurable loss, but to punish especially serious misconduct and deter similar behavior.

North Carolina law generally imposes limitations on punitive damages, although special rules can apply. For example, the statutory punitive-damages cap does not apply to qualifying claims arising from a defendant’s impaired operation of a motor vehicle.

A full determination of damages should always be conducted before considering any insurance offers. Once a wrongful death settlement is finalized and a release is signed, the family generally cannot reopen the claim simply because it later realizes the losses were greater than expected.

Step 5: Determine the Wrongful Death Beneficiaries

This is another part of North Carolina law that can surprise families: while the personal representative files the case, that does not necessarily mean the personal representative receives the money.

The people entitled to receive wrongful death proceeds are generally determined under North Carolina’s Intestate Succession Act.

Does a Will Decide Who Receives Wrongful Death Proceeds?

Generally, no.

Wrongful death proceeds are treated differently from ordinary estate property. A person named as a beneficiary in a will may not necessarily be a wrongful death beneficiary.

Who Can Be a Beneficiary?

Depending on the family structure, beneficiaries may include:

• A surviving spouse
• Children
• Descendants of a deceased child
• Parents
• Brothers and sisters
• Descendants of deceased siblings
• More distant relatives in some circumstances

The priority and shares are established by North Carolina’s intestate succession statutes.

For example, a surviving spouse’s share may be affected by whether the decedent also left children or surviving parents. If there is no surviving spouse, children and their descendants may be entitled to the recovery. When there are no spouse or descendants, parents may be next in line, followed in certain circumstances by siblings and other relatives.

Because the statutory distribution rules can become complicated, particularly in blended families or families involving deceased children and grandchildren, it is important to identify all potential beneficiaries before resolving a wrongful death claim.

Step 6: Negotiate the Claim or File a Wrongful Death Suit

Not every wrongful death case goes to trial.

After investigating the claim and determining the damages, a wrongful death attorney may attempt to negotiate with the defendant’s insurance carrier or other responsible parties. If the parties can’t reach a fair agreement, the personal representative may file a wrongful death lawsuit.

Once litigation begins, the parties may engage in discovery, which can include:

• Written questions
• Requests for documents
• Depositions
• Expert analysis
• Court motions

Some cases settle during litigation. Others will ultimately require a trial.