Wrongful Death Claims in Ohio: Who Can Bring One and What Can Be Recovered

Published February 14, 2011 · Injury Law Basics

A family in Kettering buries a husband and father after a semi crosses the center line on I-75. Within days, the trucking company's insurer calls to express sympathy and ask a few questions. The family is grieving, the bills are arriving, and nobody has explained what a "wrongful death claim" is, who is allowed to bring one, or what it can actually do for the people left behind. This post answers those questions in plain English.

What a wrongful death claim is

At common law, a person's injury claim died with them. Ohio changed that by statute. Under R.C. 2125.01, when a death is caused by a "wrongful act, neglect, or default" that would have allowed the person to sue if they had lived, the person responsible can be sued for the death itself. The statute applies even when the death was caused under circumstances that amount to murder or manslaughter, so a civil claim does not depend on whether criminal charges are filed.

A wrongful death claim is separate from the deceased person's own claim for what they suffered before dying. That second claim, usually called a "survival" claim, belongs to the estate and covers things like the decedent's conscious pain, fear, and medical bills between the injury and the death. In a serious crash case, both claims are typically pursued together.

Who brings the claim

This is where families are most often confused. Under R.C. 2125.02, the wrongful death action is brought in the name of the decedent's personal representative. That is the executor or administrator appointed by the probate court. A spouse or child cannot simply file suit in their own name; someone must first open an estate and be appointed.

The personal representative does not keep the recovery. The action is brought for the exclusive benefit of the surviving spouse, the children, and the parents of the decedent, all of whom the statute presumes suffered damages, and for the benefit of other next of kin. Other relatives who want to share in the recovery generally must show their actual loss.

Practically, this means a wrongful death case involves two courts: the probate court, which appoints the representative and later approves any settlement and its distribution among the family, and the common pleas court, where the claim against the wrongdoer is filed. The statute specifically allows the personal representative, with the probate court's consent, to settle the claim before or after suit is filed.

What the family can recover

R.C. 2125.02 lists the categories of compensatory damages a jury may award. They are broader than many families expect:

• Loss of support from what the decedent reasonably could have been expected to earn over a lifetime.
• Loss of services the decedent provided to the household: child care, home maintenance, transportation, caregiving.
• Loss of society, which the statute defines to include companionship, consortium, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, and education.
• Loss of prospective inheritance to the decedent's heirs.
• Mental anguish suffered by the surviving spouse, dependent children, parents, or next of kin.

In addition, the jury may award reasonable funeral and burial expenses, which must be set out separately in the verdict.

The jury considers all factors that existed at the time of death. Ohio also allows evidence of the cost of an annuity when future damages are at issue, which is one way a jury can be shown what it would take to replace decades of lost support.

Whether Ohio's caps on noneconomic damages apply to a wrongful death claim is a question we are not going to answer in a general post; it depends on the statute's precise wording and the type of claim. We discussed the caps generally in our post on pain-and-suffering limits. It is a question to raise with your lawyer early, because it affects how the case is pleaded.

The deadline: two years from the date of death

Most Ohio injury claims carry a two-year filing deadline measured from the injury. A wrongful death claim has its own two-year period under R.C. 2125.02, and it is measured from the date of death, not the date of the crash or the diagnosis.

Two years sounds like a long time. It is not. Before suit can be filed, an estate must be opened and a representative appointed, the medical and crash records must be gathered, and in a truck or commercial case, the evidence must be preserved before it disappears. Families who wait a year to call a lawyer have given away half the time available.

Why these cases require experience

Wrongful death cases are among the highest-value injury claims in Ohio, and the defense treats them that way. A trucking company's rapid-response team may be at the scene before the family is notified. The insurer's early sympathy call is often a search for a recorded statement. In a commercial truck case, the driver's logs, the electronic control module data, and the company's maintenance and hiring records may be the whole case, and they can be lost within weeks.

At the same time, the family is dealing with a funeral, a probate court, health-insurance and medical liens, and the loss of a paycheck. Nobody should have to learn probate procedure while planning a funeral.

What this means for you

• Do not give a statement to any insurance company until you have talked to a lawyer.
• Ask the funeral home for itemized bills and keep every receipt; funeral expenses are a separate, recoverable item.
• Gather the decedent's recent pay records and tax returns. Lost support is often the largest element of the claim.
• Identify every surviving spouse, child, and parent. Each has a presumed loss that the law recognizes.
• Call early. Opening the estate, preserving evidence, and investigating liability all take time, and the two-year clock started on the day of the death.