What is a fatal injury claim?
When someone is killed in a motor vehicle accident, a claim can be advanced by and for the benefit of the surviving spouse, parent, or child of the deceased. Such claims, often referred to as wrongful death claims, are governed by the BC Family Compensation Act (“FCA”). Siblings or other relatives do not qualify for compensation under the FCA, only spouses, parents, or children of the deceased. The definition of “parent” includes a grandparent or stepparent. A “stepparent” includes a person who lives with the parent of a child as the spouse of the parent for at least two years and who contributes to the support of the child for not less than one year. Likewise, the definition of “spouse” includes a person who “lived with the deceased in a marriage-like relationship for a period of at least two years ending no earlier than one year before the death.”
Claims under the FCA are limited to only the pecuniary losses arising from the death of a spouse, parent, or child. “Pecuniary loss” basically refers to income loss, expenses incurred, or the monetary value of services performed. The goal of compensation under the FCA is to put family members in the same financial position that they would have been if the death had not happened. There is no compensation for the terrible grief, sorrow, or loss of companionship that flows from the death of a loved one. Further, the pecuniary losses can effectively be “replaced” by someone else who fulfills the same role as the deceased, thereby negating the loss. For example, if a surviving spouse remarries, and the new spouse earns a similar income and provides the same level of household services as the deceased, then the surviving spouse is effectively put back in the same position, at least for purposes of assessing compensation under the FCA.
Types of Fatal Injury Compensation
If a court action is commenced, it must be advanced by a personal representative of the deceased on behalf of all potential claimants under the FCA. There can only be one award of damages, which must be apportioned between all the beneficiaries to the claim. A brief description of the types of compensation usually advanced in FCA claims is as follows:
- Loss of Economic Support – This claim compensates for the loss of financial support that the deceased provided to his/her family. Factors to consider in assessing these losses include the income or earning potential of the deceased and surviving spouse, the number of family members, and their cost of living, spending habits and lifestyle;
- Loss of household services/childcare – Surviving family members are entitled to compensation for the loss of household services previously performed by the deceased. This includes housekeeping, yard work, and handyman services. It is an attempt to recognize that the provision of household services has an economic value. The assessment of this loss is based on the cost of replacing the deceased’s services with hired help (whether or not someone is actually hired);
- Loss of Love, Care, and Guidance – This claim is made by children for the loss of love, companionship, guidance, training, and care that the children would have received from the deceased parent. The rationale for this compensation is that a child’s future prospects and potential will be harmed without the benefit of a parent’s love, training, and guidance, and so a potential economic loss may follow. Of course, trying to assess such a loss is highly speculative, if not simply arbitrary. Factors that will impact on the award include the age of the child and the relationship between the child and deceased parent. Generally, adult children cannot successfully advance such claims, as they are deemed past the age when parental love and guidance will shape their future prospects. The conventional maximum award is presently $35,000 per child of the deceased;
- Loss of Inheritance – This claim compensates for the loss of assets that the deceased would have bequeathed to his family if he had lived longer, and therefore had the chance to build up his or her estate. The amount of the award must be reduced to a present-day value. Factors considered in assessing such claims include the deceased’s earning history, future income earning potential, spending or saving patterns, and the existence of a will. Such claims are virtually impossible to calculate with precision and must take into account a host of variables. Courts often make no award for loss of inheritance because of the difficulties in proving such losses.
Finding the right fatal injury claims lawyer
Assessing claims under the FCA is a complex task, and usually requires actuarial evidence from an economist as part of the analysis. It is highly recommended that a personal injury lawyer is hired to handle such claims.
If you or someone you know has a wrongful death claim, give us a call. We have the experience and expertise necessary to handle any FCA claim.