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What Steps Must Be Taken to Pursue A Wrongful Death Claim in Charleston, SC and Summerville, SC?

Posted by Jay McMillian | Feb 08, 2018 | 0 Comments

THE MCMILLIAN LAW FIRM - COMPASSIONATE LEGAL SERVICES FOR THE FAMILIES OF CHARLESTON AND SUMMERVILLE  

In its simplest terms, wrongful death occurs when a person is killed due to the negligence, recklessness, or intentional act of another person or group of people. In South Carolina, fact patterns that often give rise to wrongful death claims include car accidents caused by drunk drivers, defective products, medical malpractice, pharmacy prescription errors, and workplace accidents. This list is not exhaustive and a legal claim for wrongful death could be applicable to many fact patterns. 

If such a terrible accident has occurred and your loved one has died, you have legal protection afforded to you that allow you to pursue the person responsible for your loved one's death. Remember, criminal actions (such as drunk driving) still fall under the umbrella of law enforcement. Wrongful death actions are civil lawsuits that can be brought by the family of the deceased party. The administration of the wrongful death suit will mirror a "regular" personal injury action in many respects. The wrongful death suit will alleged that the injury / death was the result of the breach of a duty of care by another party. Of course, the obvious additional element is that a South Carolina wrongful death suit will also allow the family to hold parties financially responsible for their actions that resulted in the death of a loved one.

The McMillian Law Firm is known for compassionate and effective legal representation. Call us now at (843) 900-1306 or use the online form to schedule your free no-obligation case evaluation today.

WHAT STEPS MUST BE TAKEN TO PURSUE A WRONGFUL DEATH CLAIM IN CHARLESTON, SC AND SUMMERVILLE, SC?

The South Carolina Wrongful Death Act can be found in Title 15, Chapter 51 of the South Carolina Code. A walk through Title 15 outlines the extra steps that must be taken in a Wrongful Death action.

  • WHO CAN SETTLE OR BRING SUIT ON A WRONGFUL DEATH ACTION:
    • South Carolina Code § 15-51-20, says that the personal representative of the estate of the deceased has the right to bring a wrongful death claim on behalf of that person's estate for his or her beneficiaries.

The statute makes specific reference to the "executor or administrator" of the deceased party's estate. Of course, an executor or an administrator can only be appointed upon petition with the Probate Court. Therefore, it seems clear that the deceased party must have a Probate estate opened in order to move forward with a wrongful death claim. Even if the heirs of the deceased are limited to his / her spouse and children, the plain language of the statute points directly at having a Probate appointment being made by the Probate Court. The reason why a probate proceeding is necessary will show up on the tail end of the process . . . 

  • WHO CAN NOT SETTLE OR BRING SUIT ON A WRONGFUL DEATH ACTION:
    • This one is very simple . . .  anyone who is not the recently deceased person's personal representative. This needs to be very clear . . . the only person who can consent to settlement or bring suit for wrongful death is the personal representative appointed by the Probate Court!
You might be thinking at this point "What if the deceased party's will did not name the spouse or a child as the representative? Does that mean that the spouse or the children could be cut out of a wrongful death lawsuit just because they are not named as the person's representative? Or what if the court appoints someone else after a hearing if the decease party had no will?"
 
The answer is NO!! The personal representative appointed by the court that files the wrongful death claim has nothing to do with who receives money from a successful case. The legal beneficiaries of a wrongful death award are laid out in another section of the South Carolina Wrongful Death Act. Being the personal representative does not guarantee a payout from a wrongful death claim. 

  • WHO ARE THE BENEFICIARIES OF THE PROCEEDS FROM A SUCCESSFUL WRONGFUL DEATH CLAIM:
      • The surviving spouse and the surviving children of the deceased; or
      • If there is no surviving spouse or children, to the surviving parent(s) of the deceased; or
      • If there is no surviving spouse, children, or parents, to the heirs of the deceased as determined by law*
Heirs defined by law would mean that the proceeds would be shared by any surviving heirs in amounts dictated by South Carolina's intestacy statute
 
    • The Wrongful Death Act Statute also protects the parents and heirs of "illegitimate children." Basically, if a minor child born from unmarried parents is killed, or the mother of the minor child born out of wedlock is killed, then the mother or father, or the heirs at law are to be beneficiaries of the proceeds of the wrongful death action just as if the child were produced by the two parents inside of wedlock. In short, apply South Carolina Code § 15-51-20 even if the child is born of unmarried parents. 
    • South Carolina Code Ann. § 15-51-41 does provide a mechanism to where a parent can be cut out of the award of wrongful death proceeds from the wrongful death of a child. The Probate Court will accept evidence by an interested party that a parent who otherwise would be allowed to receive compensation should be cut out due to that parent's lack of participation and lack of material support to the child during the child's life. The theory is that a parent of a child who did not actively participate in supporting or establishing a relationship with the child during life should not financially gain from the child's death. This can be summarized as the "Deadbeat Parent" prohibition. This must be proven by a preponderance of the evidence.
  • ALL WRONGFUL DEATH CLAIMS THAT SETTLE MUST BE APPROVED BY A SOUTH CAROLINA COURT:

The Wrongful Death Act does not make it easy on the back end, and this is where opening an estate in Probate Court becomes important. Usually, a wrongful death claim has three possible outcomes as far as the payment of an award:

  1. The claim is settled by the personal representative prior to a lawsuit being filed, or
  2. The claim is settled by the personal representative after a lawsuit is filed but before going to trial,
  3. The case goes to trial and the jury renders a verdict. 

Depending on when a wrongful death claim is settled, that will determine which court needs to approve the settlement!

Confused now? Well lets get the simple one out of the way first . . . If a lawsuit is brought for the wrongful death claim, and a it goes all the way and a jury renders a verdict, then that is that . . . The Circuit Court where the lawsuit is filed is going to adopt that verdict and approve it. That one is easy . . . 

    • What if the claim is settled by the personal representative prior to the lawsuit being filed?
    • What if the claim is settled by the personal representative after the lawsuit is filed but before it goes to a verdict?
*Remember, Circuit Court and Probate Court are two separate courts. Circuit Court in South Carolina is our Court of Common Pleas, which is the fancy name for our Civil Court. As a rule of thumb, remember that once you file a lawsuit, Circuit Court will have to approve not Probate Court. You can see how complicated this can get without the assistance of an attorney. 
 
                              

THE MCMILLIAN LAW FIRM IS HERE TO SERVE THE FAMILIES OF CHARLESTON, SC AND SUMMERVILLE, SC IN WRONGFUL DEATH ACTIONS

As a Personal Injury lawyer in my solo practice, I will take all necessary steps to protect the rights of your family. Though compensation can never replace the loss of a loved one, it can bring about much needed financial relief to a family still dealing with the pain fo losing a loved one. Being a small firm allows you to have direct access to your lawyer during this entire process, with open lines of communication as we work together towards a viable solution to your specific case. 

Being an experienced personal injury attorney, I have experience dealing with insurance companies. I also know where the courthouse is and will not be afraid to call the insurance company to the mat in front of a judge and jury if necessary.

If you have lost a loved one due to the negligent or reckless acts of another in Charleston, Summerville, Mount Pleasant, James Island, West Ashley, Goose Creek, Moncks Corner, North Charleston, or any of the other fine communities of the Low Country, and need to meet with an experienced personal injury lawyer, please contact me to set up your free case evaluation today. Let me help prevent you from being taken advantage of by the insurance company. I am serious and I am here for you! Contact The McMillian Law Firm today @ 843-900-1306

 

About the Author

Jay McMillian

Background I chose to build my law practice in the areas of Car Accident and Personal Injury because these areas of the law are the most accurate reflection of my values and my upbringing. Being the son of a breakfast hostess and a retired US Army Sargent turned construction worker, the values instilled upon me by my par...

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The McMillian Law Firm

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Attorney Jay McMillian operates a solo practice with an emphasis on two core principles. First, to provide competent legal advice in the areas of Auto Accident and Personal Injury Law to the people he is proudest to serve, the people of the South Carolina Low Country. Second, to provide the most personal and intimate service to each and every client and give them the attention and compassion that they deserve while going through the stress and strain of negotiating or litigating an injury claim. If you live in Charleston, Summerville, Mount Pleasant, Goose Creek, James Island, Walterboro, Moncks Corner, and you or someone you love has been injured by the negligence of another, please call Jay at The McMillian Law Firm today.

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