Interviewer: What would you say are some of the common misconceptions people have about Missouri wrongful death claims?
Kevin Roach: One of the misconceptions comes in to who the parties that can bring the suit, and who has a claim, who's entitled to what portion of the settlement. I've handled cases in the past where someone may have died in an auto accident, and their spouse makes a claim, and of course their parents may make a claim as well. There's misconceptions, in my case, I represent the spouse, but the parents, they thought they were entitled to the majority of the wrongful death settlement. That's not the case, in Missouri; dependent spouse usually has the superior claim to your biological parents.
Misconceptions Regarding the Apportionment of the Settlement
One of the misconceptions is how the settlement is divided up in these wrongful deaths. The apportionment of the settlement, there's misconceptions; basically the court has broad discretion on how to divide these settlements up. What they do is they look at the pecuniary and the non-pecuniary losses. Obviously, if you have a dependent spouse, they have pecuniary losses, they obviously had a close relationship to their spouse, and they were married together, so there are non- pecuniary losses.
Those are typically superior over an emancipated child, a grown child, or your biological parents, who obviously may, or may not, have had a relationship with the deceased, but they aren't financially dependent on them like a spouse would be. That's where a lot of the misconception comes in as to how the settlement is apportioned.
The Court Often Has to Struggle in Cases Where There are Multiple Parties That Can Make a Claim
Interviewer: How are the damages divided where there are multiple family members and heirs?
Kevin Roach: The courts, a lot of times will struggle with that. Basically if there's multiple parties that can make a claim, the court will look at the financial dependence of the parties.
For instance, if it was a minor child who made a claim, and they were dependent, obviously, on their mother or father for support, they would have a very strong claim. The court looks at the facts, its very fact driven. What it boils down to is the pecuniary and the non-pecuniary damages. Were you dependent on the deceased? Did they support you? Did you have a strong relationship with them? If a party making a claim was estranged from their father, was not dependent on their father, then they would obviously have a weaker claim, a much weaker claim, than a young child who was dependent on his father, living with his father.
It's just very fact driven, and it's just going to depend on circumstances, the set of facts that the court has to deal with.
If There are Multiple Parties Involved, They all Reserve the Right to Hire Their Own Attorney
Interviewer: If there's more than one heir, could they each hire their own attorney?
Kevin Roach: Yes, I see that on a regular basis, for instance, if there are several parties that can make claims, all families are different; I see cases where I may have several parties that are all in the same class.
It could be a mom, and two kids, and they may all want me as their attorney but all families are different, some families don't get along. There might be a step-mom, and there might be two adult children from another marriage that have claims in the same class, well they may not get along, they don't want the same attorney.
Every party that can make a claim has a right to get separate Counsel. Sometimes all the parties are represented by one attorney, sometimes they're not. I think it's always a good idea, unless the family is really tightly knit, I think it's always a good idea for the parties to have their own Counsel.
Wrongful Death Claims have a Three Year Statute of Limitations
Interviewer: What is the statute of limitations for wrongful death? Is it just like any other Personal Injury?
Kevin Roach: Statute of limitations is not like any other negligence case or personal injury case in Missouri. Most negligence cases in Missouri there's a five year statute of limitations, for wrongful death in Missouri it is three years, a three year statute of limitations. Which really throws a lot of people off sometimes because it's a shorter statute of limitations, in Missouri it's three years.
The Laws Concerning Wrongful Death Claims are Different for Every State
Interviewer: Are wrongful death cases all similar in different states? Or are there differences?
Kevin Roach: No. The law, as far as wrongful death cases go, is different in every state. I practice primarily in Missouri, I have handled cases in other states, and I can tell you that the law is definitely different, and every state has their own little twist. So no, every state has their own law. There's no federal law, or any law that really governs wrongful death cases, it's done on a state-by-state basis.