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Understanding Wrongful Death Actions

What is a “Wrongful Death” Action?

The term “wrongful death” is used when the death of any person is caused by the wrongful act or neglect of another [1]. It is a civil remedy, governed by Nevada Revised Statute (NRS) 41.085, which allows for an heir or personal representative to bring a claim on behalf of the injured party, whom is now deceased. Wrongful death actions involve suing on behalf of the Estate or the heirs, and/or the personal representatives. Say for example, a loved one was killed in a car accident when he was struck by a drunk driver. You, as an heir or personal representative, are permitted to bring a wrongful death action on his behalf against the wrongdoer.

Under Nevada’s succession laws governed by NRS Chapter 134—the persons who can sue are delineated by survivorship statutes, i.e. spouses, parents, family members, and children all have specific rights under NRS 134 which permits them to bring a claim when a loved one is victimized. These parties have rights to bring a “wrongful death” action along with any other causes of action that may be relevant, such as negligence and/or recklessness that may have brought about the death. For example:

NRS 134.040  Surviving spouse and issue.

(1) If the decedent leaves a surviving spouse and only one child, or the lawful issue of one child, the estate goes one-half to the surviving spouse and one-half to the child or the issue of the child.

(2) If the decedent leaves a surviving spouse and more than one child living, or a child and the lawful issue of one or more deceased children, the estate goes one-third to the surviving spouse and the remainder in equal shares to the children and the lawful issue of any deceased child by right of representation.

In addition, the Estate may also be a party to a lawsuit. Typically, an Estate is set up by the surviving spouse, but may be set up and administered by anyone the Court deems fit to administer. The Estate is only entitled to medical expenses, funeral expenses, and punitive damages. So in cases where there is a large hospital bill prior to death, or where conduct leading to the death was very egregious (willful, wanton, or malicious conduct), i.e. a drunk driver, then and Estate may be set up, but consultation with an attorney is advisable.

What is the Difference Between “Heirs” and “Personal Representatives”?

NRS 41. 085 creates two separate wrongful death claims: (1) for heirs of the decedent, and (2) for the personal representative of the decedent [2]. It says, “When the death of any person, whether or not a minor, is caused by the wrongful act or neglect of another, the heirs of the decedent and the personal representatives of the decedent may each maintain an action for damages against the person who caused the death. This means heirs and representatives may maintain separate actions, however, Nevada law does permit them to maintain the action jointly under certain circumstances.

“Heir”—a person who, under the laws of this State, would be entitled to succeed to the separate property of the decedent if the decedent had died intestate [3]. (See NRS 134-Succession Laws)

“Personal Representative” is a person appointed by the court to administer the estate of the deceased—in a wrongful death action this person is recovering for the decedent’s estate.

What Can You Recover For in a Wrongful Death Action?

The classification as an heir or personal representative is important in Nevada, because NRS 41.085 allows different recoveries for each. Further, The Nevada Supreme Court has stated that Nevada's statutory remedy is exclusive [4]. Essentially, this means that the Nevada courts have taken a hardline approach to recovery in wrongful death actions—they strictly interpret the statute to provide an exhaustive list of what heirs and personal representatives can recover in NRS 41.085(4)and(5) respectively.

“Heirs”—the court or a jury may award each person pecuniary damages for the person’s grief or sorrow, loss of probable support, companionship, society, comfort and consortium, and damages for pain, suffering or disfigurement of the decedent.

In contrast, Nevada courts have held that personal representatives may not recover for lost economic opportunities of the decedent, i.e., loss of probable support, because doing so would allow for a double recovery [5].

“Personal Representatives”—can recover any special damages, such as medical expenses, which the decedent incurred or sustained before the decedent’s death, and funeral expenses; and any penalties, including, but not limited to, exemplary or punitive damages, that the decedent would have recovered if the decedent had lived, but do not include damages for pain, suffering or disfigurement of the decedent.

Another important distinction between the two classifications is that NRS 41.085(4) states that recoveries for heirs may not be used to pay the decedent's debt, while NRS 41.085(5) provides that recoveries by personal representatives are liable to pay the decedent's debt.

When Can You File A Wrongful Death Claim?

Most civil claims are governed by a statute of limitations—the timeframe you have to file a claim against someone for their wrongdoing. If you miss your time to file, you can no longer bring suit against that person for the injury they caused. If you are worried about the statute of limitations in your case, you should contact an attorney at Benson & Bingham so that we can help you determine if the time to file a claim has passed.

As a general rule, “an action to recover damages for wrongful death must be commenced within two years, otherwise it is subject to the bar of limitations specified in NRS 11.190(4) (e).” [6]

Against a Provider of Health Care. In Nevada, the statute of limitations for wrongful death actions against health care providers is governed by NRS 41A.097, which states, “an action for injury or death against a provider of health care shall not be commenced more than 4 years after the date of the injury or 2 years after the plaintiff discovers or through the use of reasonable diligence should have discovered the injury, whichever occurs first” [7] Further, “the term injury refers to injury to the plaintiff through death of the decedent and not to injury to a decedent through negligent medical treatment which led to death.” [8]

 [1] (NRS) 41.085
 [2] *ALCANTARA EX REL. ALCANTARA V. WAL-MART STORES, Inc.*, 130 Nev. Adv. Op. 28, 321 P.3d 912, 914–15 (2014)
 [3]  Intestate succession is governed by NRS CHAPTER 134. 
 [4] *Pitman v. Thorndike*, D. Nev. F. Supp. 870, 1991
 [5] *ALSENZ V. CLARK CTY. SCHO. DIST.*, the Nevada Supreme court held that “subsection (4) provides that the heirs have a right to recover for loss of probable support. This element of damages translates into, and is often measured by, the decedent's lost economic opportunity. Surely the estate could not recover the same type of damage under subsection five. This would amount to double recovery, an unreasonable result.”
 [6] *PARKER V. CHRYSLER MOTORS CORP.*, 88 Nev. 560, 561, 502 P.2d 111, 112 (1972)
 [7] NRS 41A.097
 [8] *GILLOON V. HUMANA INC.*, 100 Nev. 518, 687 P.2d 80 (1984) citing (NRS 41.085, 41A.097)