The Shocking Truth About Wrongful Death - Part 15

Conclusion

This book was written with the goal of providing useful information for people considering a wrongful death claim.  In our office, we believe knowledge is power, and we hope that our book gave you the power to make some informed decisions.

Wrongful death litigation can be long and complicated, which is why we've advised that you consult with a lawyer whose practice focuses on personal injury claims.  Ask if the lawyer's office has experience handling wrongful death claims because these cases often are more nuanced and complicated than normal personal injury claims.

If you think we can help you with your case, please call us at 709-579-4000 or toll free 800-579-3262.  A receptionist will gather some information and connect you with a lawyer.  Calls that come into our office after hours are forwarded to a lawyer.  You can learn more about our firm by visiting our popular website at www.ChesCrosbie.com.

We'll schedule a free meeting with you at our office in St. John's or at your home.  At the meeting, we'll give you our professional opinion about whether or not we can help you.  If we do accept your case, you can be assured that we'll work hard to get the best result for you and your family.

The Shocking Truth About Wrongful Death - Part 14

Your Lawyer Doesn't Get Paid Unless You Do

Most of us don't have to hire lawyers very many times in our lives, so there's an understandable apprehension.  One source of anxiety is the fear that hiring a lawyer will cost too much money.  In a wrongful death case though, that shouldn't be a concern.  The vast majority of lawyers handling cases like these will work on a contingent fee basis.  That means that the lawyer's fee is covered through the settlement proceeds or court judgment.

The benefit of this type of arrangement is that the client doesn't have to pay the lawyer a big retainer up front, and in cases of need, the lawyer will cover the numerous expenses involved in a wrongful death case.  Litigating cases is an expensive endeavor.  Most people would never be able to come up with enough money to pay a lawyer by the hour for these time-consuming cases, let alone cover the big-ticket items such as payments to medical experts and the creation of complicated exhibits.  Under a contingency fee agreement, family members who lost a loved one don't have to be rich to get their day in court.  The contingency agreement provides access to justice - the keys to the court house.

The lawyer takes on considerable risk with this arrangement.  If the case has flaws that cause it to get dismissed before trial or the claims can't be proven in court, the lawyer doesn't get paid.  That's why most lawyers will be careful about what cases they decide to take on.  That's good for everyone.  The lawyer doesn't want to waste time, energy, and money on a weak claim.  And prospective clients don't want to get their hopes up when there may not be a case.

In most situations, the lawyer's fee will be 25-33.3 percent of the gross settlement or court award.  In some situations, the lawyer may set the contingent fee at 40 percent if the case is difficult and may have to go to trial, to cover the additional time, expense and risk required to take a case that far.  The likely size of the money damages is also a factor in setting a fair contingency fee.  In the event of a settlement or court award, the case expenses are taken from the client's portion of the recovery.

If the client has a concern about the reasonableness of a fee agreement, she has the right to have it reviewed by a court officer.

When you meet with a lawyer, you will have to sign a contract that specifies how the lawyer will be compensated and how the expenses will be paid.  Make sure that the contingency fee arrangement is clearly spelled out.  If you don't feel comfortable with the contract, don't sign it.  If you have questions, make sure you get answers before you sign the document.

The Shocking Truth About Wrongful Death - Part 13

9 Ways a Lawyer Can Help Your Case

Lawyers with experience handling wrongful death cases can help maximize your recovery by making key decisions at the right time in the case.  Each case is different, but we've assembled a list of 9 issues that may make a difference for your case.

1.  Hire a lawyer to start investigating as soon as possible. 

The earlier your find a lawyer, the better.  The investigation into the facts of the case could be crucial to your claim.  Witnesses need to be found and sworn statements may need to be taken.  Police officers may need to be interviewed, photos of the scene need to be made, and crucial evidence needs to be preserved.

Sometimes the lawyer can conduct the investigation.  Sometimes a qualified investigator must be hired for a proper investigation.

2.  Accident Reconstruction.

An accident reconstructionist uses math and physics to determine the cause of an accident.  In a disputed liability situation, both sides often use a reconstructionist to try to prove their cases.  The qualifications of these experts vary from individuals with high school degrees and continuing education classes to professors who teach at universities.

The lawyer's experience and connections can find the right expert for your case.

3.  Find all the defendants.

One of the jobs of the lawyer is to maximize financial recovery for the client.  In order to do that, the lawyer needs to find all the potential individuals or businesses responsible for causing the death.  Sometimes this is easy and obvious.  If a defendant ran a red light and caused the death, it's pretty clear who will be the target of the lawsuit.  But if the driver was on the job at the time, it may be difficult to determine the business for whom the driver worked.  That's crucial information because under the doctrine of vicarious liability, the employer may be liable for the accident.

4.  Find the right experts.

Experts can make or break your case.  Experts are witnesses with a specialized knowledge base whose testimony is necessary to prove a case.  Examples include economists, grief counselors, psychologists, accident reconstructionists, medical examiners, doctors, scientists, and engineers.

In our office, we have many ways to find the right experts.  We belong to regional, national and international plaintiff organizations that have databases of various experts.  Those organizations also have information available on the experts who tend to testify mostly for the defence.  We also have a network of fellow plaintiff lawyers that we consult with on a regular basis to find the best experts.

5.  Find the insurance coverage.

Insurance coverage is essential to getting the best recovery possible in most cases.  Sometimes defendants do not have enough money or assets to adequately compensate the family members of someone killed as the result of negligence.

In an "over limits" claims, our lawyers demand to see certified copies of insurance policies and signed affidavits verifying the basic insurance policy limits and that the defendant does not have an "umbrella policy", which covers claims that exceed a basic insurance policy.

6.  Document economic loss.

Families can suffer a huge economic loss when a loved one dies.  In order to prove the amount of that loss, our office hires an actuary or economist.  Many such experts are university professors who look at the decedent's income level, the income they would have earned had they lived, prior tax returns, and other economic data to determine the value of the economic loss caused by the death.

In addition to having excellent academic credentials and real-world experience, an economist or actuary must also be a superb communicator with the court.

7.  Psychological injuries.

The death of a loved one is usually devastating, especially when the cause is someone else's negligence.  The loss typically causes psychological injury to the survivors.  Depression, post-traumatic stress disorder, and anxiety are the most common results.  The report of a highly qualified clinical psychologist can help document these very real psychological injuries, which can be presented to the defendant and the court.  This will become more important as the wrongful death laws are changed to give scope for psychological injury claims.

8.  Grief counseling.

The grief counselor can document loss and help the survivors deal with the tragic situation.  The grieving process is an expected part of the wrongful death of a loved one with various stages the family needs to work through with the help of the counselor.  The lawyer can help the family locate trained professionals who can best deal with these issues.  Again, this will become more relevant to the claims process as the laws change.

9.  Demonstrate the relationship.

 The Fatal Accidents Act is designed to benefit the survivors of the person who died as a result of the conduct of a negligent party.  The more survivors who depended on the loved one for companionship, guidance, and income, the greater the potential value of the case.

You and your lawyer should work as a team to develop the best strategy for your family's case.

The Shocking Truth About Wrongful Death - Part 12

Seek Legal Help

In a routine personal injury claim, sometimes it's possible to proceed without a lawyer, even though it's usually unwise.  People shouldn't even think about trying to handle a wrongful death claim on their own.  These cases generally are far too complicated and technical for most people to tackle by themselves.

For instance, wrongful death claims need to be made through the administrator or executor of an estate.  That means an estate has to be opened through the probate court, which requires an understanding of that legal process.  The lawyer handling your wrongful death claim will do that for you or will consult with a probate lawyer to get it done.  The estate will remain open until the claim resolves.

Sometimes these already complicated cases get trickier because the person who caused the decedent's death also dies in the incident.  In that case, the claim is made against the wrongdoer's estate.  If no one opens that estate, your lawyer will have to open it if you plan to go after estate assets.  Again, that's a technical process that a layperson shouldn't try to handle.

As we discussed earlier, your lawyer has to show the decedent's death was caused by negligent or other wrongful conduct.  On top of that, the lawyer must prove the various elements of the beneficiaries' claims for damages.  The issues involved are complicated even for lawyers who operate in this world every day.

Seek a lawyer who focuses his or her practice on personal injury claims and who has experience working on wrongful death cases.  Lawyers in this field understand the issues the insurance industry and defence lawyers will raise to defeat your claim, and will have the knowledge and experience to fight for your rights.

Your lawyer will have a few options when trying to resolve your case.  Some lawyers file a lawsuit immediately, which has the benefit of putting you quickly on a trial track.  The other path the lawyer might take is negotiating with the insurance adjuster to resolve the case without having to file a lawsuit.  It all depends on the circumstances.

Lawsuits are time-consuming, expensive, and unpredictable.  The benefit of settling a claim with the adjuster is that the client gets compensated sooner and has a certain outcome.  We file suits quickly if the adjuster makes an unfair offer that we know isn't going to get any better or if the two-year statute of limitations is about to expire.

Sometimes going to trial becomes the only option.  When you're looking for a lawyer, make sure you hire someone who is willing to try cases if necessary.  It can take a long time to get to trial, but it may offer your best chance of getting fair compensation for your wrongful death claim.  If you have to go to trial, be prepared for a long wait.  It's not unusual for a trial date to be set years after the claim is filed in court, and trial dates often get postponed.

The Shocking Truth About Wrongful Death - Part 11

Wrongful Death Standards

As mentioned earlier in this book, wrongful death cases are brought because of another party's negligence or wrongful conduct.  It might be helpful to understand a little bit about those concepts.

Just because someone dies doesn't mean a wrongful death case can be justified.  For example, if Bill trips in a grocery store over cans stacked in an aisle, causing him to hit his head and die, there won't be a case.  Under Newfoundland and Labrador law, those cans would be deemed an open and obvious hazard that Bill should have seen, so the store wouldn't be negligent.

If, however, a grocery store employee spilled some clear, liquid soap on an aisle and left it there for hours without cleaning it up or posting a warning sign, and Bill took the same fateful tumble, the store would be negligent.

The point is that a person or entity who causes the death has to be deemed negligent, or at fault, under the law.  Someone is at fault when it is his responsibility to act or behave in a certain way, but fails to, which causes injury or death.  There's a lot of nuance to negligence law, but that's a boiled down version of the concept.  Negligence law essentially asks, what would be reasonable behavior for someone in the shoes of the defendant in all the circumstances, including the risk to the safety of others.

So, one basis for a wrongful death claim is to prove negligence.  The other way is to prove wrongful conduct such as an intentional act that resulted in a death.  For example, if Frank punched Jack without provocation, causing Jack to fall down, hit his head and die, Frank could be sued for causing Jack's death.  In that case, Jack's estate would have to prove that Frank's intentional and wrongful conduct caused Jack's death.

Bringing a civil suit for wrongful death would be appropriate in both of the above examples, assuming there are assets such as insurance which can pay damages.  Winning a lawsuit probably would seem like a hollow victory compared to the loss suffered, but the court system is purposely set up to allow us to work out our differences with other parties in a civil, organized way.

The insurance industry would like to paint everyone who files a lawsuit as a money grubber.  That's ridiculous and it's shameful.  People shouldn't be made to feel guilty for pursuing legitimate claims, especially when a person was killed as the result of negligent conduct.  Family members deserve to be compensated for the mental anguish and loss of financial support they experience due to the wrongful death of a loved one.  You have nothing to be ashamed of when you look out for the best interests of yourself and your family.

The Shocking Truth About Wrongful Death - Part 10

Changes to the Wrongful Death Laws: Amount of Awards

Our legislature changed the wrongful death laws in 2010 to provide for compensation for loss of care, guidance and companionship.  A case decided in New Brunswick by the Federal Court of Canada illustrates the benefit of the new law.

Federal legislation, like Newfoundland and Labrador legislation now, permits family member claims for loss of care, guidance and companionship in wrongful death cases.  The case of Wilcox v. Miss Megan (The), decided in 2008, helps to understand these awards.  The decedent had been working on board a fishing vessel when it foundered and he was drowned.  He was 63 years old at the date of death, and was a husband, father, and brother of two siblings.  The awards for loss of guidance, care and companionship made by the Federal Court were:

- wife............................................................. $75,000

- disabled daughter......................................... 75,000

- adult daughter.............................................. 25,000

- adult son....................................................... 25,000

- brother.......................................................... 15,000

- sister.............................................................. 15,000

 

Total............................................................ $230,000

So you see that these new awards can be substantial.  But remember that courts assess intangible, non-pecuniary losses such as loss of care, guidance and companionship, by looking at the nature of the relationships involved in the case, on a customized basis.  No two cases are exactly the same.  And remember as well, that courts in our province are conservative.

Although court assessments are customized to the case, conventional awards and guidelines do emerge.  For example, in an Ontario case involving immigrant family members who were very close, the Court of Appeal assessed the value of a deceased 14-year-old's close relationship with his sister at $25,000.  The loss of relationship suffered by the boy's parents was assessed by a jury at trial at $100,000 to each parent.  Although the Court of Appeal felt this to be on the high side, it was not so high as to justify interference.  But remember that an award of $100,000 to a relationship claimant is thought by many to be the rough upper limit to awards of this kind.  It is the exceptional case. 

In 2002, the Alberta legislature set the amount payable for grief and loss of guidance, care and companionship at $45,000 for each child on wrongful death of a parent, and $75,000 on wrongful death of a spouse.  These are legislated, defined amounts and the awards are automatic and without any court assessment needed.   Perhaps these amounts represent a rough consensus of amounts which Canadian society considers to be reasonable compensation for intangible, non-pecuniary losses which cannot be measured in money terms.  The spousal compensation under the Alberta legislation happens to be the same as was awarded on a case-by-case approach in the Wilcox case in New Brunswick I discussed above.  Saskatchewan and Manitoba have legislated awards for amounts payable for loss of guidance, care and companionship which are lower and, as I said before, our courts are conservative and the cases I have just discussed involve best case scenarios.  But the important point is there is potential for significant awards - no longer must lawyers tell grieving loved ones that a legal claim makes no sense because their child or their elderly parent was "worth nothing" in the eyes of the law.

The Shocking Truth About Wrongful Death - Part 9

Damages Available to Beneficiaries

Though it is little consolation to people who have lost a loved one, the way our court system compensates the beneficiaries of a decedent is by awarding money.  Damages - the term used to refer to the various reasons for which financial compensation can be awarded - are available to the estate for the losses of the decedent and to the beneficiaries.

The estate of the decedent can be compensated for the funeral expenses of the deceased, and for pecuniary losses such as loss of earning capacity.  Pecuniary losses can be accurately measured in money terms; non-pecuniary losses such as pain and suffering are intangible and cannot be measured in money terms.  Under our laws, the estate cannot claim for the pain and suffering the deceased experienced as a result of the accident or wrongdoing.  But with the recent amendment to the Fatal Accidents Act, close family members of the deceased can now claim for loss of care, guidance and companionship they have suffered.  As I explained already, the legislature has reformed the law as a result of the Breast Cancer Testing case in which I was involved.

Under Newfoundland and Labrador law, the following damages are available to the beneficiaries:

Out-of-pocket expenses - These are expenses caused by the injury and death and include the reasonable costs of funeral and burial.

Loss of support - This refers to the lost earning capacity of the decedent had he or she not died.  The factors taken into consideration for loss of support would be the salary at the time of the decedent's death as well as the amount of money the decedent reasonably could have been expected to earn in the future had the death not occurred.  Charts called "life tables" are used to calculate how long the decedent would have been expected to live based on such factors as age at the time of death, gender, and race.

Loss of services - Damages for loss of services are available to beneficiaries.  It's a sort of vague claim, but essentially the law allows beneficiaries to collect compensation for services the decedent provided the beneficiaries.  For example, assume Betty was killed as the result of someone's negligence.  If Betty provided daycare for her daughter Leslie's children, Leslie could seek compensation for the money it cost her to secure daycare.  That's not to say that the estate must show all the claimed lost services are attached to a specific dollar amount.  The judge can determine a dollar figure for each lost service.

Loss of society and mental anguish - Under this category, beneficiaries can seek financial compensation for such things as grief and the loss of companionship, care, assistance, protection, advice, guidance, and education provided by the decedent.  Obviously, it is difficult to put a dollar figure on these types of damages because they're not easily quantifiable.  For instance, you can't look in a book to find a figure that would fairly compensate a wife deprived of decades of a future with her deceased husband.  That's the job of your lawyer - to place a dollar amount on the loss of a decedent's society and to justify that amount with a reasoned argument to a judge.  Though it's not readily quantifiable, it's certainly a huge and legitimate loss to the beneficiaries - a loss for which modern systems of justice agree they ought to be compensated.  The problem was that no court in Newfoundland and Labrador had said the law requires that these types of losses be compensated.  Now the legislature has reformed the law.  In the meantime, there is room to make these claims in wrongful death cases before 2010, even though not recognized by our statute law, and settle them on a compromise basis.

The changes to the law of wrongful death made by the legislature in 2010 deserve more explanation.  That's what we'll look at in the next section.

The Shocking Truth About Wrongful Death - Part 8

Relatives Are Beneficiaries

Under the law, wrongful death suits are brought in the name of the executor of the decedent's estate in the name of various beneficiaries.  A beneficiary is someone who is entitled to financial compensation should the case be proven.

In Newfoundland and Labrador, the beneficiaries are relatives of the decedents, such as the decedent's surviving spouse, children, parents, and siblings. 

The court determines how a settlement or award is to be distributed among the potential beneficiaries based on the relationship to the decedent and the degree of loss to the beneficiary.  For instance, if the decedent was the breadwinner in the family, the surviving spouse and children would be given more money than a sibling of the decedent.

If all the beneficiaries are at the same level in the law's eyes - for instance a group of siblings - they can decide among themselves how to divide up the money and ask the court for approval.

Beneficiaries under 19 years old are treated differently by the court in order to protect their interests.  The court typically orders that the money be held in trust by the Public Trustee until the beneficiary turns 19.

The Shocking Truth About Wrongful Death - Part 7

Time to File Lawsuit is Limited

Generally, the statute of limitations in a wrongful death claim is two years, which means if a lawsuit has to be filed, it must be filed within two years of the decedent's death.  It's extremely important to keep track of this date.  If the two-year period lapses, a claim may be barred forever.  The idea behind a statute of limitations is that crucial evidence that someone needs to defend such a lawsuit could be lost or destroyed if too much time passes.  However, the two-year period may not be absolute and you should talk to a lawyer on the specifics of your case.  We will give you initial advice free of charge.

The Shocking Truth About Wrongful Death - Part 6

Wrongful Death Claims Controlled by Statute

Wrongful death claims are mostly controlled by the Fatal Accidents Act, RSNL 1990, c. F-6.  The law allows the executor or administrator of the deceased person's estate to bring a claim against the person or entity whose negligent conduct or wrongful act caused the decedent's death.  This law was brought in during the 19^th century and was aimed at allowing widows and orphans to seek financial redress for the loss of a family breadwinner.

A case can be brought if the decedent could have maintained a claim for negligence or wrongful conduct had the death not occurred.  That means the executor would need to show that the other party acted in a negligent or wrongful way, and the wrongful conduct caused the death.  Wrongful death cases can be brought for negligent acts resulting in motor vehicle accidents and medical malpractice, or for criminal acts like murder and manslaughter.  Of course it is necessary for there to be assets available - such as insurance - to pay a settlement or judgment, in order for a lawsuit to be worthwhile.

To prove these cases in a negligence context, the executor must show that the defendant owed a duty of care to the decedent; that the duty of care was breached; that the breach caused the decedent's injuries and death; and that the decedent's estate and beneficiaries suffered damages.

The case must be proven by a standard called "preponderance of the evidence", or "balance of probabilities", which roughly means that the evidence must tilt more in the favor of the executor than the defendant.  Lawyers often explain the standard by telling jurors they just need to prove their case by 50 percent or more, which is well short of the reasonable doubt standard that we've all seen in television dramas depicting criminal trials.

The Shocking Truth About Wrongful Death - Part 5

This Book Does Not Offer Legal Advice

I'm happy that you've taken time to read my book.  You should note, however, that ordering or reading my book does not create a solicitor-client relationship.  We also aren't offering a legal opinion in these pages because every case is different based on the facts of the situation.  If you want our legal opinion, please contact us at 709-579-4000 or toll free 888-579-3262.  We'll be happy to set up a meeting with you at no charge.

The Shocking Truth About Wrongful Death - Part 4

We Can Help You

Our office has been representing families who have suffered the tragic loss of a loved one since 1991.  We take a comprehensive approach to the wrongful death cases we handle.  We believe that our job is to:

1. Provide family members with all their legal options along with our analysis about how the case should be approached.
2. Develop strategies to maximize the recovery for grieving family members who may find themselves struggling financially.
3. Take charge of the situation and solve problems as quickly and easily as possible.
4. Help connect families with the resources they'll need to cope with their loss.

Over the years we have represented families in wrongful death cases arising from among the following situations:

• Car accidents
• Truck accidents
• Motorcycle accidents
• Medical malpractice
• Aviation crashes
• Prescription drug reactions
• Shootings
• Assaults.

 

The Shocking Truth About Wrongful Death - Part 3

The Newfoundland and Labrador Wrongful Death Book

A family member's passing causes tremendous pain, but the emotional and financial fallout of a death caused by another's negligence can be devastating.  I hope you haven't picked up this book because you've lost a loved one through traumatic circumstances.  If that is the case, I'm terribly sorry for your loss.

This book provides an overview of wrongful death cases that allows people having to navigate these difficult waters to make informed and educated decisions before ever talking to a lawyer.

Wrongful death cases are inherently complicated, involving everything from probate matters to negligence issues.  These types of cases are often made more difficult because insurance companies representing the wrongdoer often try to avoid liability or offer unfair or inadequate compensation.  Most people have never been through this process and, understandably, don't understand what they're up against when they decide to pursue a wrongful death claim.

Those who haven't been involved in a wrongful death case usually expect that an insurance company will compensate them for the loss of their loved one.  But for many the nightmare is just beginning.  The pain caused by the accident can be compounded by the unfair treatment the victim receives from some insurance companies that have one objective - closing the file for as little money as possible without fair compensation for the injured.

Insurance companies have teams of adjusters and lawyers that they can put to work on defending such claims.  They're professionals - they handle claims involving death and serious injuries all day and every day.  Naturally, they have an advantage over most people who are encountering these issues for the first time.  In our office, we believe knowledge is power.  We think this book will be helpful in leveling the playing field between insurance companies and those who have lost loved ones as a result of someone's wrongful acts.  If you have questions, the lawyers in our office would be happy to answer them.  Just call 709-579-4000 or toll free 888-579-3262.  You can also visit our website at www.ChesCrosbie.com.

The Shocking Truth About Wrongful Death - Part 2

Why Should I Listen To You?

 

When someone dies because of the fault or negligence of another, it's called wrongful death.

 

I wrote this book so that you could have good, solid information about wrongful death lawsuits, hiring a lawyer or dealing with an insurance company.  Forget the hype.  This book is not about hype.  It's about the tough, hard fought world of wrongful death and what you can do to improve your odds of winning if you have a legitimate case. 

 

If the death of a loved one has occurred due to the fault of another, whether by motor vehicle accident, medical malpractice, or any other accident including injury on premises - I can help.

 

My name is Ches Crosbie and I have been representing individuals against insurance companies since 1983.  I limit my practice to accident and injury cases, and helping people wronged by big corporations and big government; so, if you want a divorce or a will, or have a traffic ticket, I can't help you.

 

You may know me from my involvement in the Breast Cancer Testing Class Action against Eastern Health, and the Cameron Inquiry.  I am one of the few plaintiff lawyers in Atlantic Canada recommended by peer review publications as having a recognized competence in wrongful death and personal injury.  I was selected by the peer review publication Best Lawyers as Personal Injury Lawyer of the Year for 2009.  I am frequently invited to speak to other lawyers on a variety of topics at continuing legal education programs around the country.  I have written numerous articles for lawyers and consumers.  My firm's popular website has a lot of useful consumer articles and links on a variety of subjects.  Visit www.ChesCrosbie.com if you want to continue your research on wrongful death claims, class actions, and accident and injury claims.

 

The personal injury lawyers at my office and I have amassed many years of collective skill and experience in accident and injury law.  Obviously, the longer you have been practicing a particular area of the law, the more you will know.  We think experience matters.

 

We realize that a lawsuit may be the most important event going on in your life right now.  Your case will be personally handled by one of our lawyers - not a non-lawyer paralegal.

 

We represent many people who have been injured by the fault or negligence of others.  We also represent families of deceased loved ones in wrongful death cases - cases where the fault or negligence of others has caused or contributed to the death.  While each case is different, and past results cannot be used to predict future success, we can tell you that we have been privileged to help our clients and their families recover tens of millions of dollars in settlements and judgments from the insurance companies.  We did this by providing consumers with useful information, and our clients made an informed choice to ask us to help.

 

With this new book, we take our commitment to providing useful information to the consumer to a whole new level.

The Shocking Truth About Wrongful Death - Part 1

Why Did I Write This Book?

I decided to write this book after sad visitation with the family of Donna Howell, perished at the age of 53 from generalized breast cancer.  Donna was one of those many patients of Eastern Health whose hormone receptor testing was bungled.  I was class counsel to the patients.  Donna didn't get the life-saving drug Tamoxifen.

It was not the time to tell Donna's husband Darryl Howell the shocking truth:  in our province it is cheaper to kill than to maim.  The first step I took was to write an open letter to Premier Danny Williams.  It was published in The Telegram.  The letter went like this.

Premier Williams, you were once a personal injury lawyer, and a very good one.  Once, you too revolted against the shocking truth that dead people are worth less in money damages than the living.  Your educated lawyer's conscience still revolts at this truth.

In your province, the law of compensation for intangible losses surrounding death has not changed since the days when the British Empire permitted slavery.  Our still-existing law stems from a time when life was not just cheap, it was worthless.  But as an educated lawyer, you know this.

In the rest of Canada, the wrongful loss of the society and comfort of a loved one is compensated and has been for decades.  As an educated lawyer, you know this.

In the rest of Canada, the pain and suffering of a victim of wrongdoing is compensated even though the victim dies.  As an educated lawyer, you know this.

Many times have courts, even the Supreme Court of Canada, condemned the wrongful death laws we still enforce.  Courts have condemned the laws we enforce as inhuman, barbaric, anachronistic, and out of step with modern conceptions of fairness and justice.  As an educated lawyer, you know this.

As an educated lawyer, you know that modern conceptions of fairness and justice demand that our laws of wrongful death be reformed.  Better to reform these laws in the Legislature; but the time has come for court-driven law reform if government fails in the task.  Many more like Donna will perish while court process grinds toward reform.

Donna's husband Darryl Howell still has faith in your commitment to fairness and justice.  Others will wait and see.

We settled the Breast Cancer Testing class action for $17.5 million, and for deceased class members and their families we negotiated the same compensation as living class members.  And I am particularly pleased that the government of Premier Williams announced in December 2009 that it would reform the law of wrongful death.  As one MHA stated in the House of Assembly during debate:

The Supreme Court of Canada has condemned the wrongful laws that we still enforce, and it seems, Mr. Speaker, that we are really out of touch with the modern conceptions of fairness and justice. 

Hear, hear!

Now finally, the laws have been reformed.  As of 2010, the legislature passed the following clause into law as an amendment to the Fatal Accidents Act:

6.(2)  The damages awarded under subsection (1) may include an amount to compensate for the loss of care, guidance and companionship that a person for whose benefit the action is brought might reasonably have expected to receive from the deceased if the death had not occurred.

The law of our province has finally been brought into step with modern conceptions of fairness and justice.  My hope is that families victimized by wrongful death can benefit from this law - and from this book, which is dedicated to them.

 

Q.C. Stands for Quietly Competent Lawyer

The Queen's Counsel designation is a royal patent with a long and distinguished history, and nine new Queen's Counsel were inducted last week.  Among these lawyers is my younger brother Michael Crosbie, Q.C.  Should the present Queen pass away and be replaced as monarch by her son Charles, this designation will become K.C. for King's Counsel. 

I have commented in an earlier piece that the honour would be strengthened by a set of written criteria for the grant of it.  But I was present at Government House last Thursday, and present in Court Room 1 on Friday with Chief Justice Orsborn presiding, and no one who listened to his review of the inductees' qualifications, and indeed no one who knows the recipients themselves, could have any doubt but that they are indeed leaders of the Inner Bar and learned in the law. 

The honorees are Pittman, Q.C., Lake, Q.C., Wells, Q.C., Rowe, Q.C., Crosbie, Q.C., Aylward, Q.C., Byrne, Q.C., Jewer-Mills, Q.C., and Maher, Q.C.

As the Chief Justice stated, the receipt by counsel of letters patent from the Queen's representative reflects the Sovereign's judgment that the counsel in question has the necessary experience, seniority, and professional skill to advise and to represent the Sovereign.  Because of this recognition of eminence, he formally invited each Queen's Counsel to sit at and plead their cases from the Inner Bar, entitling them to sit on the front bench seating open only to Queen's Counsel.

Chief Justice Orsborn's comments about my learned and feisty brother are well rounded and true, as they were with all the other recipients.  I proudly reprint them here:

 

Crosbie, Q.C. is a partner in the St. John's office of the Atlantic Canadian law firm of McInnes Cooper.  He was admitted to the Bar in 1983.  Since then he has been a bar admission course instructor in Civil Procedure - I believe for over 15 years - and he has been a frequent presenter at Canadian Property Tax Association conferences.  He is a past president and honorary life member of Personal Credit Counselling Service.

Crosbie, Q.C. was probably preordained for a career in the law.  The Crosbie name is synonymous with the law in this province and in this city.  His Honour told us yesterday that the Crosbie family has now "degenerated to the point" (his words) where there are now eleven lawyers or lawyers-to-be in the family.

But preordination won't do it for you.  Crosbie, Q.C. stands here this morning based on his own reputation as a person and as an excellent counsel.

This is what his partners and friends say of him as a man - "He is a man of integrity, high professionalism, tenacity, loyalty to his clients and colleagues, and humour.  He is a wonderful family man, a gentleman and a very good friend."  We can only hope that the same could be said for all of us.

Within the legal profession, Crosbie, Q.C. is viewed as being like a "dog with a bone".  He is a passionate believer in fairness and equity and will leave no stone unturned in this pursuit of achieving what he feels is a just result for his client.

But despite his passionate beliefs, Crosbie, Q.C. also possesses that quality which is a hallmark of every good counsel.  He is objective.  I have had the opportunity to hear a number of matters in which Crosbie, Q.C. was counsel.  Some he won - some he lost.  But I remember clearly one occasion in particular when he rose to begin his argument.  He said - "You'll see from my brief that I have four points in my argument."  He paused for a moment and went on.  "The first point is not very good so I won't say anything more about that."

That objectivity and honesty was refreshing and much appreciated.  Indeed, as a matter of advocacy, it helped to reinforce the strength of his remaining argument.

I look forward to your future appearances, Crosbie, Q.C., but now from the front bench.  Welcome to the Inner Bar.

Queen's Counsel appointments in this province could benefit from elaboration of written standards for selection, of that there is no doubt.  However this year's selection of appointees, my brother among them, meets the highest standard that anyone could impose.  All are a credit to their profession and wonderfully contributing members to their community:  Quietly Competent lawyers.  Congratulations all!

 

 

Aim to Claim: Things to Know Before Calling Your Insurer - 7th and Final Point

7.      RESOURCES AVAILABLE TO YOU

Is a particular loss covered?  What's it worth? What does that clause really mean?  If you encounter misunderstandings, disagreements or other problems with a claim:

• Get clarification from the broker or agent who sold you the policy.
• Talk to the adjuster or claims specialist, or this person's supervisor.
• Ask for the insurance company's internal ombudsperson. Every federally licensed insurance company must have one.
• For home, auto and business, contact the General Insurance OmbudService (www.giocanada.org) or the OmbudService for Life and Health Insurance (www.olhi.ca). They can help cut through the red tape and impartially resolve disputes between you and your insurers.

Don't worry about a claim being denied, seeing your premiums rise or being blacklisted if you raise a fuss.  It's your right to complain-and it's often necessary.  "An insurance policy is proof of a legal contract, but there can be grey areas when it comes to settling claims," says Sherman, from The Co-operators Group.  "Every claims settlement is to some extent a negotiation."

Aim to Claim: Things to Know Before Calling Your Insurer - 6th Point

6.      DO YOU NEED A LAWYER?

In cases involving serious injury or in disputes over claims involving significant sums, it may be prudent to consult a lawyer.  Whether guiding you through the legalese of insurance contracts or helping you avoid lowball offers, a lawyer can protect your interests.

In the relationship between the insurer and the policy holder, lawyer Crosbie says, "There's a power and knowledge imbalance-a lawyer redresses the imbalance."

Aim to Claim: Things to Know Before Calling Your Insurer - 5th Point

5.      BE YOUR OWN BEST ADVOCATE

An insurance company may not be on your side, but that doesn't mean they're against you.  However, Bruce Cran, the president of the Consumers' Association of Canada, calls the relationship "adversarial."  As he notes, people making claims want everything they feel is coming, and not a penny less.  Insurers want to pay out what they feel they must, and not a penny more.

Settling claims is about balancing interests and being fair, which can be open to interpretation.  Read your policy carefully to understand your responsibilities and rights.  Clarify what you're expected to do (for example, quantify a loss and get receipts) and what your insurer will do for you.  Justify your requests.  Yes, the insurance company has obligations, but ultimately you're your own best advocate.

"You're an active participant in the claims settlement process," says the Insurance Bureau of Canada's Olson.  "It won't just happen around you."

Aim to Claim: Things to Know Before Calling Your Insurer - 4th Point

4.      DON'T SETTLE TOO QUICKLY

Sometimes, you just want to get the incident behind you.  But resolving a claim too quickly could mean an inadequate settlement.

Generally, for injuries where pain and damage can linger, don't settle until "the point of maximum medical improvement," says St. John's, N.L., lawyer Ches Crosbie.  With other types of claims (such as fire, where you might not be certain of the property loss), give yourself time to gather all the necessary information.  Then take time to consider the offered settlement to determine if it's fair.  If not, go back to the insurer.

Remember, insurance is not for a quick cheque, "it's to reimburse you for what you've lost," says General Insurance OmbudService's Maltman.

Aim to Claim: Things to Know Before Calling Your Insurer - 3rd Point

3.      TELL THE TRUTH

Being honest won't work against you, even if you're to blame for the loss.  But fudging the details, let alone outright deception, will come back to haunt you.

Often when making a claim, you are at fault-"There's no stupidity exclusion in a policy," says Lindsay Olson, a vice-president for the Insurance Bureau of Canada in British Columbia.  "People make errors."  But withholding the facts could make it harder for insurers to probe a loss, be construed as deliberate misrepresentation, label you as what The Co-operators Group's Sharman calls a "moral hazard"-what else are you lying about?-and could even nullify your claim.

Aim to Claim: Things to Know Before Calling Your Insurer - 2nd Point

This is the second in a series of seven points to think about before calling your insurer.  It comes from an article in Readers Digest by Stuart Foxman, for which I was interviewed.  Look for other points each Friday.

2.      FILING YOUR CLAIM

Delays in reporting an incident can hamper an insurance adjuster's ability to investigate.  With a car accident, for instance, the memories of witnesses can fade.  Back to that basement flood:   The insurer could also wonder if a loss was bigger than it needed to be.  Did you take steps to, say, minimize damage after a flood?  Where's the evidence of the original loss?  Did you try to fix a loss on your own and possibly make it worse? 

"Your delay could make it difficult to assess damage," says Brian Maltman, executive director of General Insurance OmbudService, "The insurer may even deny the claim because it has been prevented from being able to properly deal with the loss."

Aim to Claim: Things to Know Before Calling Your Insurer

Should you make an insurance claim? There are things to think about before making an insurance claim that can improve success.

Wrongful Death: What Breast Cancer, Swine Flu, and Cougar Helicopter Have In Common

The shocking truth that unifies these topics is the antiquated state of Newfoundland and Labrador law of wrongful death and the welcome decision of the Danny Williams government to change it.

 In the Breast Cancer Testing class action, we came up against the defense position that they should pay nothing for patients already dead. 

The families of the Cougar Helicopter crash victims come up against the same problem.  Newfoundland law says that the dead are worth nothing.  This is a major reason for the families of the victims to seek a venue in the courts of the United States, where substantial damages to compensate for this loss, insofar as money can do so, are available.

My firm is investigating cases of injury and death from H1N1 swine flu.  These cases meet our test where death or injury is due to negligent failure to diagnose and treat, and where the failure - medical malpractice - caused the injury or death.  All too often, a missed opportunity to treat has led to death.

What these high profile cases - Breast Cancer Testing, H1N1 Swine Flu, and Cougar Helicopters - have in common is the awful consequence of death and the failure of our civil justice system to recognize it in money damages.

What the families of wrongful death victims need is civil justice laws with real teeth, teeth that make wrongdoers pay.  The Danny Williams government seems to be moving on wrongful death law reform - based on my prompting and the experience of the Breast Cancer Testing class action.  Godspeed the legislators on this needed law reform.

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This website may contain information about cases that look similar to yours.  We 100% GUARANTEE that your case is different.  Don't think that because your aunt Mildred in Clarenville or your friend's friend in Corner Brook got a ton of money for their injuries that any other lawyer can get something similar for you in your case.  We recommend you should always consult with an experienced lawyer before proceeding with your claim.  You can contact us for a recommendation.