Wrongful Death FAQs

Generally, the limitation period for filing a personal injury lawsuit in Georgia is two years from the date of death. If there is a criminal charge, including a traffic ticket, arising from the incident, the limitation period is tolled (extended) as to all defendants – not just the one who is accused of a crime -- until two years after the criminal charge is resolved. O.C.G.A. § 9-3-99; Harrison v. McAfee, 338 Ga.App. 393, 788 S.E.2d 872 (2016).

If the survivor who has the right to sue for wrongful death is under age 18 when the cause of action accrues, the limitation period is extended until 2 years after turning 18, which is the 20th birthday. O.C.G.A. § 9-3-90(b).

Unrepresented estates of parties: Where either a plaintiff or a defendant has died and his or her estate is unrepresented (that is, no administrator or executor has been appointed), the statute of limitation is tolled for up to five years, after which it will begin to run (O.C.G.A. §§ 9-3-92, 9-3-93).

Fraud: Under certain circumstances, fraud on the part of the liable party, where the fraud prevents or deters the claimant from bringing an action, may serve to toll the statute of limitation (O.C.G.A. § 9-3-96).

Defendant leaves Georgia: O.C.G.A. § 9-3-94 provides, “Unless otherwise provided by law, if a defendant removes from this state, the time of his absence from the state until he returns to reside shall not be counted or estimated in his favor.”

There are other time limits that may come into play in some wrongful death cases:

Claims against state government: In claims against state government, a notice of claim must be sent within 12 months of the date the loss was discovered or should have been discovered. O.C.G.A. § 50-21-26. That notice must be in writing, sent by certified mail or statutory overnight delivery return receipt requested, to the Risk Management Division of the Department of Administrative Services, with a copy to the head of the agency involved.

Claims against counties: Notice of claim must be given to the county governing authority within 12 months. Otherwise the normal limitation period and tolling rules apply except that “minors or other persons laboring under disabilities shall be allowed 12 months after the removal of the disability to present their claims.” O.C.G.A. § 36-11-1

Claims against municipalities: In claims against a municipality, a notice of claim must be sent within six months of the incident. The statute of limitation is tolled for claims against a municipality between the time a valid ante litem notice and demand is served and the city's taking action (O.C.G.A. § 36-33-5). This does not apply to claims against counties or the state government.

In Georgia, when a person dies due to another party’s negligence or a defective manufactured product, there is always someone who can file a wrongful death lawsuit for the full value of the life. The priorities of rights to file that sit are:

1. The surviving spouse. O.C.G.A. § 51-4-2(a)
2. If there is no surviving spouse, a child or children. O.C.G.A. § 51-4-2(b)
3. For the death of a child who does not leave a spouse or child, the parent or parents can recover. O.C.G.A. § 19-7-1. This can get complicated, such as when a minor child has an infant child who is controlled by, for example, the infant’s minor mother who is in turn controlled by her parent.
4. If either parent of an unmarried deceased child is dead, then the right belongs to the surviving parent. If the parents are living but divorced, separated, or living apart, either parent may file suit and the proceeds are normally divided equally between the parents. However, either may file a motion with the court to apportion the recovery between the parents based upon their relationships with the child. Courts exercising their broad discretion have approved apportioning as little as under 2% to an uninvolved, noncustodial parent who was little more than a sperm donor. O.C.G.A. § 19-7-1.
5. When there is no person entitled to bring an action for the wrongful death of a decedent any of those statutes, the administrator or executor of the decedent may sue for wrongful death for the benefit of the next of kin. Depending on the facts of relationships, that may be siblings, grandparents, uncles, aunts, cousins, etc. O.C.G.A. § 51-4-5.

In all cases, the measure of damages for wrongful death is the “full value of the life” of the decedent, including both economic and non-economic aspects. The touchstone is that the value of life is assessed from the standpoint of what the decedent lost by not being able to life out his or her life.

In addition, the administrator or executor of the decedent may sue to funeral expense, medical expense, loss of income between injury and death, and pain and suffering prior to death. Professional judgment is required for the tactical decision whether or not to include that claim in a lawsuit.

There are many factors affecting the amount of wrongful death recovery in Georgia. While the measure of damages for wrongful death is the “full value of the life” of the decedent, the amount of settlement seldom truly reflects that ideal. Lawyers often have to counsel clients that the settlement value of a case reflects those factors more than it does the inestimable value of the life of their loved one.

Some of the factors include:

• Availability of insurance and assets to pay a settlement. You can’t get blood from a stone or money from an at-fault defendant who has none. Too often we see deaths caused by individuals who have minimal liability insurance, if any. While you might be able to get a big jury verdict for wrongful death, an uninsured or underinsured driver usually can be discharged from that debt in bankruptcy. Even if the person at fault were driving under the influence of alcohol or drugs, and thus barred from discharge in bankruptcy, there might be no significant assets or income out of which to collect. If the defendant who caused a death has only $25,000 in auto insurance coverage, and underinsured motorist insurance coverage is too little to be meaningful, you may be limited to whatever that insurance coverage is. Therefore, when a lawyer begins work on a wrongful death case, one of the first steps is to determine insurance coverage. Fortunately, Georgia is one of the few states that provides a legal right to obtain insurance coverage information before filing suit.
• Age of the victim. Any life is of great value. However, jurors and thus insurance companies tend to place somewhat greater value on the life of a person who was younger, and thus had more of life remaining to be lived, and more future earning capacity and income loss.
• Earnings and education. The amount of income that a person could have earned over his or her lifetime is a factor in determining the economic aspect of the value of life. If the victim was too young to has established a career and earnings record, expert testimony can provide a projection based upon average earnings at various educational levels.
• Estate’s claim for pain, suffering and economic damages. When a person who is injured survives for days, weeks, or months prior to death, the estate of the decedent can recover for medical expenses (subject to medical and health insurance liens), as well as for income loss between injury and death, and for conscious pain and suffering. It is a judgement call for lawyers to decide whether or not to include this claim in a suit. If a punitive damages claim is necessary in order to dig into corporate wrongdoing that led up to the death rather than just one errant employee’s negligence, this claim is worthwhile. If that is not a factor, and there are medical or health insurance liens enforceable against the estate but not against the survivors’ claim for wrongful death, the estate claim is often omitted.
• Family relationships. When a decedent leaves behind a spouse, minor children, and other dependents, the loss can be especially hard on the family. Having minor children may affect the value of a claim, as minor children not only suffer financial losses when a parent dies but also the loss of parental guidance. Though the measure of damages is from the perspective of the deceased, jurors may see it in the mirror image of the family’s loss. Once in the case of a young father we used to great effect a video of him grilling at his son’s first birthday party; he turned to the camera with a huge smile on his face and said, “This is so much fun!” A few months later he was killed. That was powerful.

Wrongful death cases we have handled. Here is a sample of wrongful death cases we have handled in recent years.

• $8,000,000. Death of a young college graduate who was rear ended by a tractor trailer at a stop light. The insurance policy limit was $10,000,000, and there were numerous other injury cases to settle out of that limit. Collectable assets of the company were modest.
• $5,750,000. Death of a young business executive due to medical malpractice.
• $1,900,000. Death of a passenger in an SUV. We found a defective brake design that no one else had ever identified, and obtained a pretrial settlement with the auto manufacturer.
• $1,450,000 each for 2 people. Elderly couple killed when rear ended by a tractor trailer in South Georgia. There was only $1,000,000 per incident insurance coverage but we used a creative legal theory to get an additional $1.9 million.
• $1,300,000. Settled truck crash death case for more than the $1,000,000 policy limits.
• $1,200,000. One of five deaths caused by trucking company with $1,000,000 policy limits, whose insurer wanted to settle all five deaths for $200,000 each. After four years of litigation with other companies up the transportation food chain, we obtained an additional $5,000,000 for the group.
• $1,000,000. Settlement for full insurance policy limits of small trucking company with no assets where inattentive trucker ran over family vehicle, killing wife and injuring husband.