Wrongful death in Charlotte, North Carolina

If you are the close relative of a loved one who is recently deceased due to the negligence act of another, it is likely that you are currently understanding the complexities of bringing an wrongful death action in North Carolina.

Wrongful death actions allow a close family member to recover for a number of expenses and losses including: medical, funeral, loss of anticipated earnings, punitive damages, loss of benefits, pain and suffering, mental anguish, loss of inheritance, loss of companionship and general damages.

Even though you may be dealing with the loss of a loved one, it is important that you speak with a Wrongful Death Attorney immediately as you face the risk of loosing valuable evidence that may be used at trail. By hiring a competent Wrongful Death Lawyer in Charlotte, North Carolina, we can offer you assistance from start to finish. Sheehan at (704) 222-4752 and speak with an Attorney today.

In North Carolina the wrongful death action belongs to the estate's personal representative

In North Carolina a wrongful death action may be brought only by the personal representative or collector of the deceased person's estate (G.S. 28A-18-2(a)). A spouse, a parent or an adult child has no right to sue in their own name, however close the relationship was. Someone must first be appointed by the clerk of superior court, and the venue for that appointment is the county in this State where the deceased person was domiciled at death (G.S. 28A-3-1(1)) — for a Charlotte resident, the estates division of the Mecklenburg County Clerk of Superior Court. Where the person who died was a nonresident motorist who died in this State, G.S. 28A-3-1(3) allows the estate to be opened in any county.

Who is appointed is governed by G.S. 28A-4-1. Letters testamentary go to the executor or executors named or designated in the will, then to any substitute or successor executor named there, and then to anyone nominated by a person on whom the will expressly confers that power. If none of them qualifies, the clerk grants letters of administration under subsection (b) in a listed order — surviving spouse, devisee, heir, next of kin, creditor, a person of good character residing in the county, and last any other person of good character not disqualified under G.S. 28A-4-2. That order is not rigid. The statute allows the clerk to depart from it where the clerk determines that the best interests of the estate otherwise require, and where applicants are equally entitled the clerk grants letters to whoever is most likely to administer the estate advantageously, or to two or more of them together.

Qualification takes time, and it is a precondition to filing rather than a formality that can be attended to later. That is one reason the two-year deadline is tighter in practice than it looks on the page. The estate is not expected to carry the cost of the case unaided in the meantime: G.S. 28A-18-2(a) lets the personal representative pay the reasonable and necessary expenses of pursuing the action, attorneys' fees excepted, out of the assets of the estate, and requires that anything recovered be applied first to reimbursing the estate for those expenses and then to attorneys' fees before it is distributed.

The claim is derivative, so every defense that would have met the deceased person meets the estate

A wrongful death action lies in North Carolina only where the wrongful act, neglect or default was such as would, if the injured person had lived, have entitled that person to an action for damages (G.S. 28A-18-2(a)). The estate stands in the shoes of the person who died. Where they could not have recovered, the estate cannot either.

The consequences run in every direction. A release signed before death, a limitation period that had already expired, and any defense founded on the conduct of the person who died all carry across to the estate's claim. It also means the underlying wrong can be of any kind — a collision, a fall on premises, a defective product, medical negligence, neglect in a care facility — and each of those brings its own standard of care and its own proof requirements. The same subsection preserves the claim notwithstanding the death and although the wrongful act, neglect or default causing the death amounts in law to a felony, so a pending or completed criminal prosecution neither creates the civil claim nor displaces it.

Contributory negligence can defeat a claim outright, but it is not the last word

North Carolina is one of a small number of States that still applies contributory negligence. Where the person who died was negligent to any degree and that negligence was a proximate cause of the death, an ordinary negligence claim fails altogether; damages are not reduced by a percentage of fault, as they would be in most other States. It is an affirmative defense, and G.S. 1-139 puts the burden of proving it on the party who asserts it. The jury answers it as a separate issue.

There are two answers to the defense, and the stronger one is often the one a grieving family never hears. Contributory negligence is no bar at all where the defendant's own conduct amounted to gross negligence, or to wilful or wanton conduct, that was a proximate cause of the death (Yancey v. Lea, 354 N.C. 48, 550 S.E.2d 155 (2001)). That is the usual posture of a death caused by impaired or grossly reckless driving, which is why the punitive damages analysis below bears on liability and not merely on the size of a recovery. The qualification is that the shield is not unconditional: where the conduct of the person who died reached that same level, the bar returns and recovery is defeated again (Sorrells v. M.Y.B. Hospitality Ventures of Asheville, 332 N.C. 645, 423 S.E.2d 72 (1992)).

Where only ordinary negligence is shown, the remaining route is last clear chance. The jury reaches that issue only after answering the negligence issue against the defendant and the contributory negligence issue against the plaintiff, and the plaintiff must then prove four things: that the person negligently placed themselves in a position of peril from which they could not escape by the exercise of reasonable care; that the defendant knew, or by the exercise of reasonable care should have discovered, that position of peril and that inability to escape; that the defendant had the time and means to avoid the injury and failed to exercise reasonable care to do so; and that the defendant negligently failed to use the available time and means, proximately causing the injury (N.C.P.I. — Motor Vehicle 105.15, drawing on Vancamp v. Burgner, 328 N.C. 495, 402 S.E.2d 375 (1991)). The burden on all four rests with the plaintiff. This is why liability insurers in North Carolina examine the conduct of the person who died as closely as the conduct of their own insured, and why early statements and scene evidence carry so much weight.

Two years from the date of death, subject to repose periods that can bar the claim first

In North Carolina a wrongful death action must be brought within two years, and the cause of action does not accrue until the date of death (G.S. 1-53(4)). That is a year shorter than the three years G.S. 1-52 allows for an ordinary personal injury claim, and the clock does not wait for the estate to be opened.

The same subsection carries a proviso that can end the claim before it begins: where the deceased person would have been barred, had they lived, from bringing an action for bodily harm because of the provisions of G.S. 1-15(c) or G.S. 1-52(16), no action for the death may be brought. G.S. 1-15(c) is not confined to medical negligence. It governs malpractice arising out of the performance of or failure to perform professional services generally. It fixes accrual at the occurrence of the defendant's last act, gives one year from discovery where the injury was not readily apparent when it originated and is discovered two or more years after that last act, provides that nothing in it reduces the limitation period below three years, and bars any such action commenced more than four years after the last act — ten years where the damages are sought by reason of a foreign object left in the body. A professional negligence claim can therefore be lost on the three-year clock and never reach the four-year outer limit at all. G.S. 1-52(16) is the ten-year counterpart for ordinary latent bodily injury and property damage claims.

Other repose periods run without regard to when the claimant discovered the injury: twelve years after the date of initial purchase for use or consumption where the claim is based on or arises out of an alleged product defect or failure (G.S. 1-46.1), and six years from the later of the defendant's specific last act or omission and substantial completion of the improvement where the claim arises out of the defective or unsafe condition of an improvement to real property (G.S. 1-50(a)(5)) — though that six-year bar may not be asserted by a person in actual possession or control of the improvement who knew or ought reasonably to have known of the defective or unsafe condition, or by a defendant guilty of fraud or of wilful or wanton negligence. A criminal conviction does not reliably buy time either. G.S. 1-15.1 tolls the applicable limitation and repose periods while court-ordered restitution remains unpaid, but that section does not apply where the offense of conviction was established in Chapter 20 of the General Statutes, which is where the motor vehicle offenses sit.

What G.S. 28A-18-2(b) allows a wrongful death recovery to include

In North Carolina the damages recoverable in a wrongful death action are listed by statute rather than left to general tort principles. G.S. 28A-18-2(b) allows:

• Expenses for care, treatment and hospitalization incident to the injury resulting in death
• Compensation for the pain and suffering of the deceased person
• The reasonable funeral expenses of the deceased person
• The present monetary value of the deceased person to the persons entitled to receive the damages, including the reasonably expected net income, the services, protection, care and assistance they would have given, and their society, companionship, comfort, guidance, kindly offices and advice
• Such punitive damages as the deceased person could have recovered under Chapter 1D had they survived, and punitive damages for wrongfully causing the death through malice or wilful or wanton conduct as defined in G.S. 1D-5
• Nominal damages when the jury so finds

Punitive damages, and the limits that apply to them and to malpractice claims

Punitive damages are not available merely because a death was preventable. G.S. 1D-15 requires the claimant to prove that the defendant is liable for compensatory damages and, by clear and convincing evidence, that one of three aggravating factors was present and related to the injury: fraud, malice, or wilful or wanton conduct. G.S. 1D-5 defines malice as a sense of personal ill will toward the claimant that incited the conduct, and wilful or wanton conduct as the conscious and intentional disregard of and indifference to the rights and safety of others which the defendant knows or should know is reasonably likely to result in injury, damage or other harm — a standard the same section says means more than gross negligence. They may not be awarded on the basis of vicarious liability alone: the person must have participated in the conduct constituting the aggravating factor, or, in the case of a corporation, its officers, directors or managers must have participated in or condoned it.

Where they are awarded, G.S. 1D-25(b) provides that punitive damages shall not exceed three times the amount of compensatory damages or $250,000, whichever is greater, and directs the trial court to reduce a larger verdict and enter judgment at that maximum. The jury is not told the limit exists (G.S. 1D-25(c)). G.S. 1D-26 disapplies the G.S. 1D-25(b) cap for a claim for punitive damages for injury or harm arising from a defendant's operation of a motor vehicle where the defendant's actions in operating it would give rise to an offense of driving while impaired under G.S. 20-138.1, 20-138.2 or 20-138.5; the section turns on the conduct rather than on whether a conviction was ever obtained.

A different limit applies to claims founded on medical malpractice. G.S. 90-21.19 caps the total noneconomic damages entered against all defendants at a figure recalculated for inflation every three years by reference to the Consumer Price Index. The cap does not apply where the trier of fact finds both that the plaintiff suffered disfigurement, loss of use of part of the body, permanent injury or death, and that the defendant's acts or failures that proximately caused the injury were committed in reckless disregard of the rights of others, grossly negligent, fraudulent, intentional or with malice. Both findings are needed. A death, on its own, does not lift it.

The recovery is distributed under the Intestate Succession Act, not under the will

Wrongful death damages are not ordinary estate assets. G.S. 28A-18-2(a) provides that the amount recovered is not liable to be applied as assets in the payment of debts or devises, except as to the burial expenses of the deceased person and reasonable hospital and medical expenses not exceeding $4,500 incident to the injury resulting in death — and the amount applied for hospital and medical expenses is itself limited to fifty per cent of the damages recovered after attorneys' fees are deducted. Those two limits do not restrict subrogation rights exercised under G.S. 135-48.37. Claims filed for burial expenses and for hospital and medical expenses are subject to the approval of the clerk of superior court, and any party adversely affected by the clerk's decision may appeal to superior court. What remains is disposed of as provided in the Intestate Succession Act, which means the will of the person who died does not control who receives it.

Settlement is supervised as well. G.S. 28A-13-3(a)(23) allows the personal representative to maintain the action and to compromise or settle the claim, whether in litigation or not. Unless every person who would be entitled to receive damages recovered under G.S. 28A-18-2(b)(4) is a competent adult and has consented in writing, the settlement is subject to the approval of a judge of the court or tribunal exercising jurisdiction over the action, or of a district or superior court judge where no action has been filed; if the claim is brought under Article 31 of Chapter 143 it goes instead to the Industrial Commission. Where minor children are among the beneficiaries, which is common, that approval is required. The same subdivision also makes it the personal representative's duty, in distributing the proceeds, to take into consideration and make a fair allocation to those claiming funeral, burial, hospital and medical expenses.

Where the death happened at work, the Act is the starting point but not always the end of it

Where the person who died was killed in the course of their employment, the first remedy is the death benefit under the Workers' Compensation Act. G.S. 97-38 provides weekly payments equal to sixty-six and two-thirds per cent of the deceased employee's average weekly wages, within the statutory maximum and minimum, to those wholly or partially dependent on those earnings, together with burial expenses not exceeding $10,000, where death results proximately from a compensable injury or occupational disease and within six years of it, or within two years of the final determination of disability, whichever is later.

G.S. 97-10.1 then excludes other rights and remedies against the employer — but conditionally, and the condition matters. It applies if the employee and the employer are subject to and have complied with the provisions of the Article. Two situations fall outside it. Where the employer intentionally engaged in misconduct knowing it was substantially certain to cause serious injury or death, the personal representative may pursue a civil action against the employer as well as a compensation claim, although only one recovery is allowed (Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991)). And where the employer refused or neglected to secure the payment of compensation at all, G.S. 97-94(c) makes it liable, during the continuance of that refusal or neglect, for compensation under the Article or at law at the election of the injured employee.

A claim against someone other than the employer survives in any event. G.S. 97-10.2 gives the personal representative the exclusive right to enforce the liability of a third party if settlement is made or summons is issued within twelve months of the death; if neither happens and the employer has filed a written admission of liability with the Industrial Commission, either the personal representative or the employer may then proceed, and all such rights revert to the personal representative sixty days before the applicable limitation period expires if neither has settled with or sued the third party. The employer's interest in a third-party recovery is a lien rather than a fixed deduction: under G.S. 97-10.2(j) either party may apply to a resident or presiding superior court judge, who determines in his discretion the amount, if any, of the lien, weighing prospective compensation, the net recovery to the plaintiff, the likelihood of success and any other factors the court thinks just and reasonable.

How a contested wrongful death case proceeds in Mecklenburg County

Under G.S. 7A-243 the superior court division is the proper division for the trial of a civil action in which the amount in controversy exceeds $25,000, which for a death in Charlotte ordinarily means Mecklenburg County Superior Court. The division rules are administrative rather than jurisdictional: G.S. 7A-257 treats the remedy for filing in the wrong division as a motion to transfer, and failure to move within the time prescribed waives the objection. The complaint is filed in the name of the personal representative, and the liability insurer's answer normally pleads contributory negligence as an affirmative defense at the outset.

Before that stage the insurer will already have been working: recorded statements, the crash report, medical and employment records, and sometimes an early offer while the family is still arranging a funeral. Once suit is filed, discovery reaches earnings and household contribution as well as liability, because the present monetary value element in G.S. 28A-18-2(b)(4) has to be proved rather than assumed, and G.S. 28A-18-2(c) makes all evidence reasonably tending to establish it admissible.

Under G.S. 7A-38.1 the senior resident superior court judge of a participating district may order a mediated settlement conference in any superior court civil action pending in the district, and may by local rule order all cases not exempted by Supreme Court rule to one; where a conference is ordered, the parties, their attorneys and those with authority to settle must attend unless excused, and a person who fails to attend without good cause is exposed to the contempt powers of the court and to monetary sanctions. Fees in these cases are usually contingent and are set by written agreement in the individual case, and where a judge's approval of the settlement is required, the fee and the distribution are reviewed at the same time.

Common questions

Written for North Carolina law and reviewed by David P. Sheehan, attorney, Charlotte. General information, not legal advice — see the disclaimer.