THE MCMILLIAN LAW FIRM IS PRIVILEGED TO SERVE THE FAMILIES OF THE SOUTH CAROLINA LOW COUNTRY WHO HAVE BEEN TRAGICALLY EFFECTED BY THE LOSS OF A LOVED ONE.
The most tragic portion of my law practice involves any occasion where I must sit down with an aggrieved family member to discuss the loss of a loved one due to the negligence or malice of another. South Carolina law has established two separate legal claims that can be brought when someone dies in an accident as a result of third party negligence. These legal remedies are referred to as "wrongful death" and "survival" actions. I will discuss below what each of these actions require so that any insurance or asset recovery is successful.
LEGAL DEFINITION OF WRONGFUL DEATH
The relevant provisions of South Carolina's wrongful death statute can be found starting at S.C. Code Ann. Section 15-51-10. The statute allows a lawsuit to be filed on behalf of a deceased party or their children when a family member has died due to the deliberate, reckless, or negligent actions of a third party. If there is no spouse or children, then the legal action is for the benefit of the deceased person's parents. If there is no spouse, children or parents, then the lawsuit is for the benefit of the deceased person's heirs (persons who would inherit from the deceased party, such as surviving siblings, aunts, uncles, etc.)
THE SCOPE OF WRONGFUL DEATH
In South Carolina, many types of accidents and events that result in a fatality can be grounds for filing a legal action for wrongful death, including the following:
- Auto accidents
- Truck Accidents
- Motorcycle accidents
- Medical malpractice
- Nursing home abuse and neglect
- Assault and Battery
To get a gauge of how expansive wrongful death can be, remember the OJ Simpson case? Well, he was found not guilty in his criminal trial but found liable for civil damages on the wrongful death suit filed against him . . .
WHO CAN BRING A WRONGFUL DEATH SUIT IN SOUTH CAROLINA
South Carolina law allows a wrongful death action to be brought by or in the name of the executor or the administrator of the deceased person. What does this mean? Well, the first step in any wrongful death action is to get an appointment of a Personal Representative of the deceased party by the Probate Court. This is required really on two fronts, first this will be the person who drives the lawsuit and becomes the legal representative of the deceased party before the Court. Second, on most occasions, the ability to negotiate or discuss the matter with any available insurer will require this step to be taken before any meaningful progress on a potential settlement could be achieved.
So . . . again let's reframe the original question . . . who can bring a wrongful death suit in South Carolina? The statute starts by telling us that it can be brought by the Personal Representative that has been presented and appointed by the Probate Court. Let's get down to the smallest details though . . . who can be that person (or people)?
If the deceased had a will at the time of their death, then the person or persons who can bring the wrongful death action will be the persons named as the Executor or Personal Administrator in the will. If the deceased did not have a will at the time of their death, then the person who can bring the wrongful death suit will be the person appointed as Personal Representative by the Probate Court. Each of these possibilities will require that a Petition for Appointment be filed with the Probate Court so that a lawful appointment can be made.
Some practical considerations to consider about both of these possibilities:
Do not confuse the right to bring the wrongful death action with who will receive compensation.
The statute that governs who can bring the legal action for wrongful death is separate from the statute that governs who can receive any compensation for a wrongful death action. In most cases where a will may be involved, the Personal Representative will most likely be a relative of the deceased, but not necessarily. For example, the will of the deceased may have named a family friend as the delegated Personal Representative. However, this person would not be entitled to any compensation from the wrongful death action. The wrongful death statutes limits beneficiaries to intestate heirs (to be discussed in next article).
If the deceased died without a will, then the person who seeks to pursue the action will most likely be an heir.
When someone dies without a will in South Carolina, he or she is said to have died "intestate." This means that without a will, South Carolina law dictates who can inherit from the deceased. For purposes of wrongful death actions, at least for my practical experience, representing the family of an intestate deceased is much simpler. Why? Well, when we petition the Probate Court for the appointment of the Personal Representative, the Probate Court has what it refers to as "priority." Priority is basically the order in which heirs and potential beneficiaries are considered to be the Personal Representative. So, in a practical matter, when I am dealing with a wrongful death action where the deceased died without a will, I know I am most likely consulting (and I confirm this) with someone who is either a spouse, sibling, parent, or other heir of the deceased. Being a boyfriend or girlfriend or significant other, outside of any marital or family bonds, will not get you priority for an appointment as a Personal Representative in an intestate matter.
WHAT IS A SURVIVAL ACTION IN SOUTH CAROLINA
One technical difference between a wrongful death claim and a survival claim is that wrongful death claims are for the family members' benefit, while survival actions are made for the benefit of the recently deceased. The survival action statute (found at Section 15-5-90) allows a person who has been injured, but doesn't die in the immediacy of the accident, to recover for damages incurred during the time between the accident and the person's death.
WHO CAN FILE A SURVIVAL ACTION IN SOUTH CAROLINA
Just like in a wrongful death claim, a survival action must be brought by (or in the name of) the executor or the administrator of the deceased person. As a practical matter again in my experience, the survival action is brought together with a wrongful death claim in the same suit.
THE MCMILLIAN LAW FIRM
DEDICATED TO SERVING FAMILIES ACCIDENT VICTIMS IN CHARLESTON, SC AND SUMMERVILLE, SC
As an attorney with experience in wrongful death and survival actions, I will take all necessary steps to protect your rights and earn just compensation for you and your loved ones due to an unfortunate set of events. Through my efforts, I can bring about much needed financial relief to the family who may be suffering from the loss of 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 or a loved one has been injured 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