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Wrongful Death in Missouri
How long do I have to bring a cause of action for a wrongful death that occurred in Missouri?
The statute of limitations for wrongful death actions in Missouri is 3 years. This means that, in most cases, a person only has 3 years to commence a wrongful death lawsuit in Missouri. Certain circumstances can create a longer statute of limitations – it is highly recommended that you contact a Missouri personal injury attorney to learn when the statute of limitations runs in a specific case.
When someone is killed in Missouri due to the negligent or intentional actions of another person or company, is the “survival” action a part of a wrongful death lawsuit in Missouri?
Yes. RS.Mo. 537.090 requires that a survival cause of action be brought together with a wrongful death claim in Missouri:
In addition, the trier of the facts may award such damages as the deceased may have suffered between the time of injury and the time of death and for the recovery of which the deceased might have maintained an action had death not ensued.
Survival actions may claim several categories of damages, including:
1. Medical expenses for the last illness;
2. Lost wages; and
3. Conscious pain and suffering after the decedent was injured, but before they died.
The first two categories can be readily proven in a Missouri survival action, however the third category is more difficult, but may be proven through witness testimony or the testimony of medical experts.
Who may bring a wrongful death case in Missouri?
RS.Mo 537.080.1 outlines who may bring a wrongful death action in Missouri, stating:
Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstance which, if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party who, or the corporation which, would have been liable if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured, which damages may be sued for:
(1) By the spouse or children or the surviving lineal descendants of any deceased children, natural or adopted, legitimate or illegitimate, or by the father or mother of the deceased, natural or adoptive;
(2) If there be no persons in class (1) entitled to bring the action, then by the brother or sister of the deceased, or their descendants, who can establish his or her right to those damages set out in section 537.090 because of the death;
(3) If there be no persons in class (1) or (2) entitled to bring the action, then by a plaintiff ad litem. Such plaintiff ad litem shall be appointed by the court having jurisdiction over the action for damages provided in this section upon application of some person entitled to share in the proceeds of such action. Such plaintiff ad litem shall be some suitable person competent to prosecute such action and whose appointment is requested on behalf of those persons entitled to share in the proceeds of such action. Such court may, in its discretion, require that such plaintiff ad litem give bond for the faithful performance of his duties.
2. Only one action may be brought under this section against any one defendant for the death of any one person.
When Missouri personal injury lawyers break this statute down, it essentially means that, in a wrongful death case filed in Kansas City or Independence Circuit Court, (or elsewhere in Missouri/under Missouri law) the proper Plaintiffs are, in order of priority by “class”:
1. The spouse of the decedent (the decedent is the person who was wrongfully killed due to the intentional or negligent acts of another person).
2. The children of the decedent, if there is not a surviving spouse.
3. The parents of the decedent, if the decedent did not have a surviving spouse nor surviving children.
4. The siblings of the decedent.
5. The nieces and nephews of the decedent.
6. A “plaintiff ad litem”
Of note, the Supreme Court’s ruling in Obergefell v. Hodges, 135 S. Ct. 2584, 2588 (2015) should extend the wrongful death statute to same-sex spouses in Missouri.
When a Missouri wrongful death lawsuit is filed by a surviving spouse, evidence that the spouse has since remarried is not allowed to be introduced as a mitigating circumstance in the wrongful death action. Elmahdi v. Ethridge , 987 S.W.2d 366 (Mo.App.W.D. 1999).
Parents have priority, over all other potential parties to file suit for the wrongful death of an unmarried, childless, minor child. Oldfield v. Giblin , 595 S.W.2d 447 (Mo.App.W.D.1980). This is true regardless of a number of circumstances. A parent who failed to legitimize or shoulder any responsibility for the deceased child is not precluded from taking part in the settlement. Even parents who, due to neglect have lost custody of the deceased child, have standing to sue. Sims v. Arvin Industries, 170 S.W.2d 711 (Mo.App.W.D.1989). Only if parental rights have been terminated, does a parent lose the legal right to sue for the wrongful death of a child. Malone By and Through Alexander v. Jackson, 652 S.W.2d 170 (Mo.App.E.D.1983). The parents do not have to be married for either or the both of them to take part in the suit. However, if paternity is in question, it must be proven before the settlement can be approved and apportioned. Snead by Snead v. Cordes by Golding, 811 S.W.2d 391 (Mo.App.W.D.1991).
Damages available in Missouri wrongful death cases:
Missouri law provides for a jury to award damages when “there a reasonable probability of pecuniary benefit to the plaintiff from the continued life of the deceased; or is there a pecuniary injury to the plaintiff from the decedent's death." Domijan v. Harp , 340 S.W.2d 728 (Mo. 1960). To determine the appropriate amount of damages under this category, a jury may consider the health, life expectancy, talents, age, habits, character, and earning capacity of the decedent. Kilmer v. Browning , 806 S.W.2d 75 (Mo.App.1991).
Now the Missouri statute allows for the recovery of uncapped non-pecuniary damages such as the reasonable value of: services, consortium, companionship, comfort, instruction, guidance, counsel, training, and support. The reasoning behind allowing non-pecuniary losses such as these was explained by the Missouri State Supreme Court, long before the amendment was passed:
They are founded upon the theory that the wrongdoer ought not be permitted to destroy the home or to take away the support, society, comfort, and care which one enjoys, and of which he has a moral right to expect the continuance, and escape liability to the extent of purely pecuniary compensation for the wrong, on the ground that these things, however important they may be to the life and future of the sufferer, are too intangible to be cognized by the law.
Miller v. Southern Pacific Co., 178 S.W. 885, 893 (1915).
Apportionment in Wrongful Death cases in Kansas City, Independence, or elsewhere in Missouri
Apportionment of a settlement for non-pecuniary damages is determined by the relationships between each member of the class and the decedent. In distributing pecuniary damages, the financial contribution of the decedent to each member of the class is the determining factor. In apportioning the settlement each relationship should be looked at in relation to the others. For instance in one class you may have a surviving spouse as well as a parent. The spousal relationship, both financial and non-pecuniary generally entitles the spouse to a more significant portion of the settlement. This is due to the significance of the relationship at the time of death in comparison with the parental relationship. Bragg v. Missouri Pacific R. Co., 791 S.W.2d 776 (Mo.App.E.D.1990). Likewise, the relationship between a deceased parent and their child would entitle the child to a greater portion of the settlement than the decedent's parents. This is illustrated in the case of Wright v. Cameron Mut. Ins. Co . The parents, husband and child of the decedent all had standing to bring the wrongful death suit. The settlement was apportioned as follows: decedent's husband received $6,300; decedent's parents received $0; and decedent's child received $56,000. Wright v. Cameron Mutual Ins. Co., 908 S.W.2d 867 (Mo.App.S.D.1995).
Action for damages--personal representative to maintain or defend--exception--action against liability insurer, procedure.
537.021. 1. The existence of a cause of action for an injury to property, for a personal injury not resulting in death, or for wrongful death, which action survives the death of the wrongdoer or the person injured, or both, shall authorize and require the appointment by a probate division of the circuit court of:
(1) A personal representative of the estate of a person whose property is injured, or a person injured or a person entitled to maintain a wrongful death action upon the death of any such person and such appointment in only those cases involving loss chance of recovery or survival shall be made notwithstanding the time specified in section 473.050 for the exclusive purpose of pursuing a cause of action related to such injury or wrongful death; provided that, in such cases, the court in which any such case is brought shall appoint a plaintiff ad litem at the request of the plaintiff or other interested person delineated in section 537.080 and such person shall be entitled to the proceeds of such action. Such plaintiff ad litem may maintain such action instead of the personal representative of the deceased and may maintain the action as an alternative theory in any action under section 537.080; and
(2) A personal representative of the estate of a wrongdoer upon the death of such wrongdoer; provided that, if a deceased wrongdoer was insured against liability for damages for wrongdoing and damages may be recovered from the wrongdoer's liability insurer, then the court in which any such cause of action is brought shall appoint at the request of the plaintiff or other interested party a qualified person to be known as a defendant ad litem. The defendant ad litem when so appointed shall serve and act as the named party defendant in such actions in the capacity of legal representative of the deceased wrongdoer and such appointment and any proceedings had or judgment rendered in such cause after such appointment shall be binding on the insurer of such deceased wrongdoer to the same extent as if a personal representative had acted as the legal representative of such deceased wrongdoer in such cause of action. Should the plaintiff in such cause of action desire to satisfy any portion of a judgment rendered thereon out of the assets of the estate of such deceased wrongdoer, such action shall be maintained against a personal representative appointed by the probate division of the circuit court and the plaintiff shall comply with the provisions of the probate code with respect to claims against decedents' estates. Nothing in this section shall be construed to permit a plaintiff in such cause of action to pursue other assets of a decedent's estate after the expiration of the time provided in section 473.444.
2. Nothing herein shall be construed to require that the deceased wrongdoer leave no assets subject to probate administration before the appointment of a defendant ad litem as herein provided, nor shall the appointment of a defendant ad litem as herein provided prevent the probate division of the circuit court from appointing a personal representative of the estate of the deceased wrongdoer for purposes of administration of the assets thereof.
3. The defendant ad litem may be allowed a reasonable fee by the court appointing him which shall be taxed as court costs. The defendant ad litem shall not be liable for court costs unless specially charged by the court for personal misconduct in the action.
4. Actions properly pending against personal representatives and defendants ad litem prior to September 28, 1981, shall not be affected by the provisions of this section.