Civil Claim vs. Criminal Case
Video Transcript:
Cindy Speaker: What is the difference between a civil wrongful death claim and a criminal wrongful death case? That’s our topic on this episode of Main Street Law. My guest is North Carolina Personal Injury Attorney, Michael A. DeMayo of the Law Offices of Michael A. DeMayo. So Michael thanks for being here.
Michael A. DeMayo: My pleasure.
Cindy Speaker: Well Michael, what is the difference between a civil wrongful death claim and a criminal wrongful death case?
Michael A. DeMayo: Cindy, sometimes there are some confusions. Let’s give an example, the more traditional example is an automobile accident where someone for example the defendant has been drinking or is under the influence of some sort of drugs or something of that nature, and they would cause an accident and kill someone.
Well, there’s generally going to be two components to that case. The first is obviously the criminal case because in North Carolina now, and in South Carolina as well, they’re taking these cases very seriously and oftentimes they’re no longer treating them as misdemeanor death by vehicle, but they’re calling them felonies, and sometimes even second degree manslaughter, and there are some active jail time that occurs especially if the circumstances are fairly egregious like the person is drunk and they had been drinking before or they’re going the wrong way down a one-way street, or we had one recently, unfortunately where the person was going the wrong way on 485 which is a major beltline around the city of Charlotte.
So there are two components. There’s the criminal case which is what the state decides to prosecute and decide what the criminal sanctions are and that usually involves obviously a judge and a district attorney and a prosecutor, and they go after the person from a criminal standpoint. All we do is the civil component which is unfortunately, it’s a very, very weak and inadequate remedy but we seek damages—monetary damages for the people that are left behind, the family, it can be children, wife, spouse, whatever. So from a practical standpoint, we just deal with that end of it.
The distinction is criminal—everything that happens on a criminal case is decided by the state, North Carolina, South Carolina and their employees. Civil, we will sue the defendant but oftentimes, well, a 100% of the time, there’s an insurance company behind that defendant who are actually going after for recovery.
Cindy Speaker: Okay. Well, let me ask you this. If there is a criminal case, does the family have to wait for that to settle before filing the civil claim?
Michael A. DeMayo: No, you do not. In fact, it’s oftentimes very advantageous that the cases go simultaneously. We oftentimes get hired on our civil end within days of the wrongful death, and obviously the criminal investigation is still occurring. The advantage to having them simultaneous is we can benefit oftentimes from the investigation because the investigation on wrongful deaths are very serious injuries, are generally done by a select group of troopers that have significant level of expertise and accident reconstruction because obviously, the client can’t tell you what happened, they’re dead. So from a practical standpoint, that’s very beneficial.
Every once in a while, the civil case, the claim, or if we have to follow lawsuit, will be delayed and that we can’t always get the information in certain counties, certain DA’s will not release the information from the criminal file until the case is concluded. But from a practical standpoint, no, we generally like to get working on the civil case as soon as possible because obviously, any facts, information, any investigation is better done closer to the accident time than later.
Cindy Speaker: Okay. Well, what kinds of losses can be recovered from a wrongful death claim?
Michael A. DeMayo: Okay. Cindy, generally, you can get a loss income, future loss of income. There’s a thing called loss of consortium, society, friendship companionship. If there was any lingering prior to the death, you can get pain and suffering. If there are any medical bills incurred, you certainly get that; funeral costs, burial fees, all that’s included.
Generally, if the person is a provider for any family member, you can also look to that. You look at what’s called their “economic impact” to the survivors. And oftentimes, we’ll do something called a life care plan and couple that with an economic report that tells us, unfortunately, you can put a value on someone’s life to the extent that they were providing for a family. For example if that person is the primary breadwinner and they were certainly supporting any individual or number of individuals, then that claim is inclusive in the wrongful death claim.
00:05:08
Cindy Speaker: Now Michael, who is the appropriate person to file a wrongful death claim?
Michael A. DeMayo: The appropriate person to file a wrongful death claim is someone called the “administrator”. In North Carolina and South Carolina it’s called the “personal representative”. They are appointed either by the Clerk of Court or by a Probate Judge, but essentially it’s someone who’s going to stand in and basically act on behalf of the state. I essentially generally describe it as a Power of Attorney for someone who has been deceased. It is not necessary that a beneficiary, basically someone who is going to benefit from that person’s death from an economic standpoint be the administrator. But as a general rule, we usually use someone, like a spouse or a brother or mother or sister, because they are the more logical. But a bank officer can serve as the administrator, another attorney can serve as an administrator, if there’s not an appropriate person sometimes, if all the beneficiaries are minors, there’s a public administrator.
So someone has to be qualified. We can help get someone qualified if they are the appropriate person. But generally, that is the person who can act on behalf of the state and not only on the wrongful death claim, but administer other issues and other claims that might occur within the estate.
Cindy Speaker: Michael, in the beginning of this discussion, you mentioned that sometimes a wrongful death claim is filed just a few days after the death occurs. But what is the appropriate timetable for filing such a claim, or is there one?
Michael A. DeMayo: Well in North Carolina, the statue of limitations for a wrongful death is two years. In South Carolina, it’s generally three years unless it’s a governmental entity and then its two years. So as a general rule, you have to either settle that case within that time period or file a lawsuit to do what’s called “toll the statute” to basically quit the clock from running. So as a practical matter, it’s not necessary that they immediately get representation and file a claim. But the sooner or someone like ourselves get involved in the case, the better job we can do because obviously, we’re already at a distinct disadvantage. Our client can’t tell us what happened. And the defendant generally, as a general rule for some strange reason if they’re drunk or they’re grossly negligent, for some strange reason, cork of fate, they always tend to survive.
So obviously, they’re going to give their version of the story. So to the extent that we can use accident reconstruction is sometimes we can access what’s called the “black box”, we can look at driver’s logs, we can look at independent witnesses, we can look at a reconstruction done by troopers, we can look at the entire investigation done by the investigating team. That is generally much fresher and we are generally able to do a much better job from a liability standpoint at the inception of the case. Developing who the person was, what they were in the community as a father, as a provider, as a wife, their friends, their companionship, the volunteer things that they did, that can be developed a little bit further down because those memories generally don’t fade with the beneficiaries. But as a general rule, it is very critical on these cases that if—and I always recommend obviously that an attorney get involved, that someone higher, an experienced personal injury attorney who only does these types of cases so that they can get going on the case as soon as possible.
Cindy Speaker: Well that makes sense. Well Michael, if someone has specific questions, how can they reach you?
Michael A. DeMayo: Well, we can always be reached 24 hours a day, seven days a week at our toll free number that is good anywhere in the United States at toll free 1-877-333-1000, a very easy number to remember. Or if someone would like to do some research about us or maybe do an intake form online, they can certainly go to our website which is www.demayolaw.com. That’s D-E-M-A-Y-O-L-A-W all one word.
Cindy Speaker: Very good. Michael thank you for your time today.
Michael A. DeMayo: Thank you Cindy.
Cindy Speaker: This is Cindy Speaker for State Law TV.
Wrongful Death Claims: Civil vs. Criminal
Video Transcription:
Cindy Speaker: What is the difference between a civil wrongful death claim and a criminal wrongful death case? That’s our topic on this episode of Main Street Law. My guest is Texas personal injury attorney, Gregg Anderson of the Law offices of Terry Bryant and he’s going to talk with us about this topic. So, Gregg, thanks for being here.
Gregg Anderson: Pleasure to be here, Cindy.
Cindy Speaker: Well, Gregg, what is the difference between a civil wrongful death claim and a criminal wrongful death case?
Gregg Anderson: Well, there’s a big difference. A civil wrongful death claim is brought by a private citizen or individual against another person or corporation that has caused the death of a loved one versus what you call a criminal wrongful death case, is really what we think of as a murder case or man slaughter case where the state tries to put someone in jail for killing someone.
Cindy Speaker: Now, if there’s a criminal case, does the family have to wait for that to settle before filing a civil claim?
Gregg Anderson: Not at all, they’re really unrelated. I think a good example is the O.J. Simpson situation where as we all know he was acquitted of murder in this criminal case and then the civil case moved on.
