Wrongful Death

Yes. In New Jersey there are two ways to recover compensation for the loss of a loved one because of negligence:

● The first is a wrongful death claim, which is brought by family members who can prove that the death caused them to suffer financial losses.
● The second is a survival action, which compensates the decedent’s estate for the pain and suffering the individual endured between the time of the injury and death.

For example, if a person is injured in an accident and survives for a period of time between the accident and their ultimate death, their estate would recover compensation for their pain and suffering, emotional distress, and other losses related to the accident.

The wrongful death portion of the claim is to recover compensation for the loss of the income the decedent would have earned to support the family. The damages from the wrongful death claim go to the surviving family members while the damages from the survival action go to the estate to be distributed according to the decedent’s will or according to state inheritance laws if the individual died without a will.

Who Can File a Wrongful Death and Survivorship Claim?

Who can be the Plaintiff in a New Jersey wrongful death case? If there is a Will, the Executor would be the Plaintiff.  An Executor named in a will can file both claims on behalf of the survivors and the Estate of the deceased person.

If there is not a Will, an Administrator ad Prosequendum must be named to bring a Wrongful Death claim.  That action may be brought in the Surrogate’s Court of the County where the Intestate resided or, if he/she lived outside the State, the Surrogate’s Court in which the accident resulting in the death occurred.  The Surrogate issues Letters of Administration ad Prosequendum which give the authority to the Administrator ad Prosequendum to bring the action and institute proceedings. N.J.S.A. § 2A:31-2

While letters of administration ad prosequendum provide plaintiffs standing to pursue wrongful death claims—some defense attorneys take the strategic position that without letters of general administration—the Administrator ad Prosequendum does not have the right to pursue survival claims.

This is an example of the technicalities employed by defense attorneys looking to reduce the amount of their client’s financial exposure. While their position in not necessarily meritless, New Jersey Courts strongly disfavor permitting a technicality frustrate a determination on the merits of a case.

There are several cases which have discussed this and held that the “technical mistake” of not obtaining both general letters of administration and letters of administration ad prosequendum can be cured at any stage of the litigation. As far back as 1940, the New Jersey Appellate Division has focused on curing technical deficiencies and not allowing them to be exploited as a clever defense tactic. One Court, addressing a technical flaw in the manner in which the letters of Administration were flawed, stated;

“But from a meritorious point of view, the delay worked no harm, legal or otherwise, to the defendant…. indeed [defendant] seems to have defended on the merits until the trial-and under the circumstances the error was curable by the issue of the letters offered in evidence and rejected.” Cammarata v. Pub. Serv. Co-Ordinated Transp., 124 N.J.L. 38, 40,41 (1940)

These are fine, technical points which can potentially impact the recovery and illustrate the need for competent counsel and guidance.

Types of Wrongful Death Damages

The purpose of wrongful death damages in New Jersey is to ensure the family members and the deceased’s estate are compensated for their losses due to death. This compensation may cover the following:

● The pain and suffering experienced by the deceased prior to their passing
● The victim’s medical bills for injuries or illness caused by the accident before they passed away
● The loss of financial support due to the deceased’s passing (based on what the deceased would have been expected to earn were they alive)
● Loss of the value of childcare and other household services
● Funeral and burial expenses
● Loss of comfort, care, guidance, and companionship

If a family member was present at the death of a loved one, it is possible for a wrongful death lawyer to file a separate lawsuit for negligent infliction of emotional distress.

The damages recovered from the lawsuit are awarded to those family members who were dependent on the deceased person when they died or those who, under New Jersey inheritance law, are entitled to part of the deceased’s inheritance, such as:

● A surviving spouse
● The deceased person’s surviving children and grandchildren
● Surviving parents
● Surviving siblings, nieces, and nephews
● Those that can prove they were dependent on the deceased person

N.J.S.A. § 2A:31-4