Every wrongful death claimant has a personal and separate cause of action for a decedent’s
wrongful death. But procedurally, the actions must be brought as a “joint, single and
indivisible” action. What does this mean to you as a wrongful death heir? Let’s discuss
that here…
There is a concept in wrongful death law known as the “one action rule” that stands for
the proposition that all wrongful death claimants must join, or be joined, in the same
single action. This law is to protect a defendant from multiple lawsuits.
Think about it, if someone is suing you for wrongful death, you dont know all of the next
of kin of the decedent. Does the decedent have one heir or 100? If you were sued, you
don’t want to settle with one heir today only to find out that there were other heirs who
are now making claims against you.
So who has the burden on making sure that everybody joins the claim or lawsuit. Well the
law is very clear...the heirs who file the claim or bring the action against the wrongdoer
bear this burden. They must bring all claims, and all claimants/heirs, together at the
same time.
This law has the potential to cause strife amongst some wrongful death heirs. Sometimes
siblings do not get along for years and then a parent is killed and now they all have to
work together for the resolution of a claim against a common wrongdoer. One sibling may
feel entitled to more than the others.
Sometimes it is a married step-mother who loses her husband and the deceased husband’s
children (i.e. her step children) also have rightful claims. Now they may all fight over
the same insurance proceeds or pool of money. It can become quite ugly.
Procedurally, there are ways to “bring in” wrongful death claimants to an existing
wrongful death lawsuit. These "joined" heirs are commonly known as “nominal defendants”.
Wrongful death heirs who bring a case can add other heirs by naming them in their lawsuit
as a “nominal defendant”. When served, these nominal defendants must answer and bring
their claim as one action with the other wrongful death heirs.
You will want a lawyer who can lower the temperature in the lawsuit and acquire agreement
amongst all the heirs so that justice can be achieved against the wrongdoer who caused
your loved one’s death.
If a settlement is reached between the heirs collectively against a wrongdoer, then the
proceeds need to be divided. Sometimes there is a dispute between the heirs, if so
mediation of the dispute is common.
Mediation is when all heirs have a retired judge or specially trained mediator to help
resolve the dispute informally without court proceedings. If mediation is unsuccessful,
then the parties may need to seek apportionment of the proceeds by the judge. This is a
much more time consuming, expensive and more adversarial process than mediation.
When you choose a wrongful death lawyer to represent you, you want a lawyer who
understands the law, and is a person who can advocate for you. You want a lawyer who can
represent you either as the main plaintiff or a “nominal defendant”.
You want a lawyer who can mediate the dispute effectively on your behalf or fight the
apportionment hearing before a judge in a court of law. Please call our office and we will
provide you a free evaluation of your case and advise you how best to proceed.