Wrongful Death Punitive Damages: Recoverable or Not?

Wrongful death punitive damages may be recoverable, but it depends upon the jurisdiction (court, location, specific statutes) that the case will proceed in.

Wrongful Death Punitive Damages: The Basics

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What Are Punitive Damages In A Wrongful Death Case?

There are several types of damages available in wrongful death cases.

These damages may have different names, depending upon the applicable laws.

In general though, there are damages available to compensate the plaintiff for the monetary losses resulting from the act causing the injury (aka “economic damages”).

The amount of economic damages are usually easy to prove, because they are associated with specific and quantifiable losses.

Some examples of economic damages are lost wages (like the plaintiff was unable to go to work for a specific number of days and missed a certain number of hours), medical bills, and property damage.

There are also damages available to compensate the plaintiff for harm that are not associated with specific monetary losses, such as pain and suffering, (aka “non-economic damages”).

The amount of non-economic damages are fairly difficult to prove, as it is quite difficult to connect up a certain amount of money to a certain amount of pain or suffering.

Punitive damages are another kind of damages that might be available in a wrongful death case.

These damages compensate the plaintiff, but they are primarily meant to do what their name suggests–punish the defendant(s).

When punitive damages are allowed, they are usually only allowed to be awarded when the actions of the defendant are found to be particularly bad.

These types of damages are not available in every case or in every jurisdiction, and are generally authorized only by a specific statute.

For example, in Wisconsin, punitive damages in wrongful death cases are not recoverable. (source)

On the other hand, in California, punitive damages in wrongful death cases are actually recoverable.

However, punitive damages can only be ordered in California if the death was the result of a felony.

How Do I Know Whether Punitive Damages Are Available In A Wrongful Death Case?

The easiest way to confirm whether punitive damages are available is to speak with an experienced wrongful death attorney in the location (city/state) where your case is likely to be filed.

If you can’t speak to an attorney, or need a quick and general answer, first do a quick search for punitive damages in the likely state of the case, as most wrongful death statutes are written into state laws, rather than city or county codes.

If you aren’t sure where the case should be filed, you could search for wrongful death statutes in the state where the death occurred, where the action that eventually caused the death occurred, and where the defendant resides.

While it isn’t certain that the case should be filed or pursued in any of those states (if they are not the same state where the bad acts occurred), at least you’ll have a general idea of what’s possible.

And to no one’s surprise, it is not uncommon for attorneys and parties to choose to proceed in states or jurisdictions that are the most favorable to the plaintiff if there is a choice between one state or another to maximize the potential recovery dollar amount.

Are Punitive Damages Awarded Often in Wrongful Death Cases?

In jurisdictions where punitive damages can be awarded, it is still rare for courts (judges and/or juries) to award them.

Punitive damages are usually reserved for the most egregious type of conduct.

Some cases require a separate hearing or even trial associated with this specific kind of damages.

If punitive damages are awarded, defendants will sometimes choose to appeal that decision and award to avoid paying them with the hope that the award could be overturned.

Attorneys often put them in the pleadings (making their clients excited about the potential higher dollar amount).

Sometimes the likelihood of a punitive damages award against a defendant will cause the defendant’s insurance company to try and settle the case quickly.

But again, it should be noted that punitives only get awarded by a jury when the behavior is particularly bad, and rises to the level of bad behavior contemplated by the statute authorizing them.

Can You Get Punitive Damages In A Wrongful Death Settlement Before A Case Is Filed?

Potentially yes, but for reasons discussed below, you might not want to pursue them in settlement.

In a wrongful death settlement, the types of damages or recovery is not governed by statutes.

Instead, the parties have more freedom to negotiate resolution of the wrongful death claim.

The plaintiff might have a settlement amount in mind, composed of economic, non-economic, and punitive damages.

And the defendant might agree to pay a certain amount of money to resolve those damages.

It is rare for a defendant to agree to pay for anything called “punitive damages.”

In fact, most settlement agreements specifically states that the defendant will not be admitting any fault in the matter, and that the settlement shouldn’t constitute any agreement or evidence that the defendant did something wrong or bad.

And agreeing to “punitive damages,” the defendant would potentially be agreeing that “punishment” was/is warranted, one step away from admitting fault in the matter.

Further, if they have the ability to control it, plaintiffs might prefer not to call any damages in the settlement agreement “compensation for punitive damages” because punitive damages are more likely to be taxed, while economic and non-economic damages may not be taxable.

Talk to your CPA or tax advisor, but what the damages are called in the settlement agreement could mean paying more taxes or less.

It’s a good idea to talk to a CPA before resolving a case (especially if the proceeds are going to be significant) to protect as much of the award as possible.

To sum, plaintiffs frequently pursue a settlement amount pre-filing that includes punitive damages, but the parties generally avoid calling the settlement amount punitive damages.

Looking For More Information About Wrongful Death Cases?

We are building up a library of articles intended to assist people facing a wrongful death lawsuit from any angle.

The Wrongful Death Article Library is intended to help make your first conversation with a lawyer, prosecutor, defense attorney, insurance adjuster, or other involved party easier.

You can find the growing Wrongful Death Article Library here.