Dirk Derrick (00:00):

Welcome to The Legal Truth, the podcast created to provide you general legal information about South Carolina law, lawyers, and the legal process, and hopefully prevent you from being surprised by the unexpected. We will answer many of the questions I've been asked during the past 35 years about South Carolina personal injury claims and workers' compensation claims. We'll also discuss existing laws and proposed changes in the law and how they affect you. My name is Dirk Derrick. I'm the founder of the Derrick Law Firm and I'm your host.

Voiceover (00:35):

Please see required ethics disclaimers in show notes.

Dirk Derrick (00:42):

Welcome to the Legal Truth Podcast. I'm here with Co-host Pearl Carey. Welcome, Pearl.

Pearl Carey (00:49):

Thank you so much. Happy to be here.

Dirk Derrick (00:51):

We're here today to talk about the truth about wrongful death claims, claim that arises when someone is killed by the negligence or reckless of another. These are bad cases, and we're going to answer the questions that potentials and clients ask us about this claim early on just to give the public some information. It is a different type of case.

Pearl Carey (01:14):

Thank you so much for the introduction. This is obviously a very important topic and let's get into some questions regarding wrongful death in South Carolina.

Dirk Derrick (01:22):

Okay.

Pearl Carey (01:23):

So what are some of the common causes of wrongful death claims in South Carolina?

Dirk Derrick (01:27):

Wrongful death claims arise from all types of situations. It can be car wrecks, it can be drunk drivers, it can be trucking accidents, it can be malpractice cases, premise liability cases. Wrongful death just means that someone has been killed by the wrongful conduct of somebody else, and it can be a negligent conduct, wrongful conduct, reckless conduct. So it comes in all kinds of forms.

Pearl Carey (01:56):

So how is liability determined in one of these cases?

Dirk Derrick (01:59):

It's determined as in any other case, you have to investigate the elements of the claim. The wrongful death statute is basically covers who brings it, who benefits from the claim, but the remaining elements of the particular claims are the same, whether someone's killed or not killed.

Pearl Carey (02:20):

Right. So what is the statute of limitations on one of these cases?

Dirk Derrick (02:24):

They're usually three years, be two years if it occurs by some charitable organization or a governmental entity. So that can be two or three years.

Pearl Carey (02:34):

So let's say there's multiple parties involved in a wrongful death claim. How is liability kind of determined in that type of case?

Dirk Derrick (02:42):

It's determined the same way as a case when someone's injured and not killed. I mean, you always look, you investigate every case, get all the facts and determine anyone who contributed to it. You build those cases up after investigation. We then appraise it by a focus group or jury research purposes and see what their beliefs are as far as division of responsibility. But it comes down to if you try the case, a jury would divide responsibility among any defendants named and/or the plaintiff if the plaintiff contributed himself or herself.

Pearl Carey (03:22):

So you're saying it's similar to any other type of claim in the sense of you can find multiple parties liable?

Dirk Derrick (03:28):

Yes.

Pearl Carey (03:29):

Gotcha.

Dirk Derrick (03:30):

Yep.

Pearl Carey (03:30):

Okay, makes sense. And so what are some of the steps that I would need to take if I were looking to pursue a wrongful death claim?

Dirk Derrick (03:36):

Wrongful death claim is pursued by the personal representative of the estate, and there's really two claims that arise from the death of someone because of the negligence of someone else. You have a wrongful death claim and you have a survival action. They are both brought by the personal representative of the estate. The wrongful death claim is brought on behalf of husbands, wives, children. If there's no spouse, there's no children. Then for parents, if there's none of them, then it's for the heirs. So there's a kind of, it's for the spouse and the children. If they don't exist, then it's for the parents and so forth and so on. So they kind of a step-down as far as who benefits from it. The wrongful death is the damages sustained by the loved ones or losing in that person.

Pearl Carey (04:30):

Gotcha. And so what are some of those damages?

Dirk Derrick (04:33):

Those can be economical damages if they're supporting some family members. And then there's the mental anguish of losing a family member. Those are economic and non-economic. The survival action is a separate action. Most time we bring them at the same time, but the survival action is for the benefit of the estate, and those damages are damages that come from the person surviving for a period of time before they pass away.

Pearl Carey (05:02):

Okay.

Dirk Derrick (05:02):

So if you imagine if there's a motorcycle accident or a car accident and the person survives for 30 days, go to the hospital and have all these bills. So the survival action is those damages.

Pearl Carey (05:03):

Gotcha.

Dirk Derrick (05:17):

The damages that occurred from the time of the incident until death, and those are made on behalf of the estate. The money goes into the estate to help pay for those bills and those damages. The wrongful death damages go to the beneficiaries.

Pearl Carey (05:33):

Okay.

Dirk Derrick (05:33):

It doesn't go through the estate because the damage is sustained by those family members.

Pearl Carey (05:39):

So how might one prove mental anguish in a case like this? Obviously when someone's going through a hard time such as a wrongful death, how is that kind of determined?

Dirk Derrick (05:50):

It's determined by looking at the relationship between the two parties, the economical relationship, if person who passed away provided for the family member. Also, the relationship they had, the time they spend together. We focus grouped a couple of these cases not too long ago and talked to the jurors at the conclusion of the focus group to find out what they wanted to see. They really want to understand the depth of the relationship.

Pearl Carey (06:21):

Okay.

Dirk Derrick (06:22):

Do they spend time in the morning at breakfast? What time do they spend together during the week and during the weekend? What hobbies do they share? How much do they depend on each other? Get advice from a father or a mother. They really look at the depth of the relationship because you're trying to put a dollar amount, the loss of a person out of your life.

Pearl Carey (06:46):

So if someone were to pursue a wrongful death claim, are there any special considerations or factors they need to be aware of before doing so?

Dirk Derrick (06:54):

No, other than we need to get a personal rep appointed. Personal rep brings both of those cases, one on behalf the survivor action, on behalf of the estate, the wrongful death on behalf of those people who benefit from it. But once a personal rep is established, can bring those claims as kind of like any other claim, it's just the settlement has to be approved by a judge, which is unusual. And the law says who the case benefits, who case is brought on behalf of.

Pearl Carey (07:27):

Okay.

Dirk Derrick (07:29):

If you got injured or I got injured or wreck, we know it's us. It may be my spouse if they have a loss of consortium case, but at a death case, the statute just says, here goes the people who received the damages in this type of case.

Pearl Carey (07:43):

So I know we talked in our last podcast about the three different parts that make up an investigation process for a personal injury claim. Are those the same for a wrongful death claim?

Dirk Derrick (07:44):

Yes.

Pearl Carey (07:54):

Okay.

Dirk Derrick (07:56):

It still comes down to the three-legged stool or liability, who caused it. Damages, here you have a wrongful death. You may have a survivor action depending on how long they survived after the incident. And then collectability, insurance coverage, assets still the same.

Pearl Carey (08:14):

So do wrongful death cases typically go to trial or are they typically settled out of court?

Dirk Derrick (08:19):

It can be either way. Most cases in South Carolina settle, I mean 99%. We don't try cases like we used to, which is a good thing. We spend a lot of time focusing cases where we bring in 12 jurors and present cases to them. A lot of times pre-lit, before we file a lawsuit. We also do it pre-mediation before mediation, and then we do it pre-trial.

Pearl Carey (08:45):

Okay.

Dirk Derrick (08:45):

And by the time we go to trial, we've had six juries of six look at the facts, look at the issues, give their opinions value, give their opinions on what they want to see, and we often share that with the other side to prevent unnecessary litigation. Shorten cases where you have to file litigation, and if neither one of those work, then the third set is to get ready for trial.

Pearl Carey (09:12):

Okay.

Dirk Derrick (09:12):

Some of the trial experts say that if you give a case to four groups of six people, you'll get 95 to 98% of the conversations in the real jury room. So we feel like if we have six groups of six, we don't know what they don't want. They want in the jury room and what they don't be talking about, which is an advantage, but we share those results most of the time with the other side. Every one of our clients don't want to sue people. I don't know of anybody who likes to be sued.

Pearl Carey (09:39):

Right. Of course not.

Dirk Derrick (09:42):

The problem is the jury process. The appraisers who end up appraising a case comes down at the end of this litigation process. We've now moved it up to the beginning...

Pearl Carey (09:51):

With the focus groups.

Dirk Derrick (09:51):

With these focus groups.

Pearl Carey (09:52):

Yeah.

Dirk Derrick (09:53):

We've video stuff and we show both sides what these 12 jurors say, and these 12 jurors may not say the exact same thing as 12 three years from now, but if you get these 12, then you get these 12 and you get these 12, you start getting data points. So the more we can show that to our clients and to the other side, everybody gets a feel what the real value is, and it expedites settlement and it prevents people who have gone through awful situations, having to drag out litigation. That's our goal on all litigation, but especially wrongful death. We can get the facts, present the facts, present both arguments...

Pearl Carey (10:30):

Try to expedite the process. Yeah.

Dirk Derrick (10:32):

Expedite it. Don't make anybody go through a litigation. It's a win for everybody.

Pearl Carey (10:36):

So I know in our previous podcast we kind of discussed how there's certain factors that can come up that can kind of skew the direction of a case. Are there any particular factors that could change the direction of a wrongful death case or that could maybe make it a little bit more difficult to get justice for the family?

Dirk Derrick (10:54):

You still have the liability leg, the damage leg and collectability.

Pearl Carey (10:54):

Okay.

Dirk Derrick (10:57):

You got to have some insurance coverage or assets to be paid out of.

Pearl Carey (11:02):

Yeah.

Dirk Derrick (11:03):

You still got to have someone who added, negligent or reckless. The biggest difference in wrongful death cases is the damage leg, because it's not what someone who's injured feels as far as pain and suffering and stuff. You're going outside of that person and looking at what other people are feeling and what their damages are. So that's unusual.

Pearl Carey (11:26):

Okay.

Dirk Derrick (11:27):

So the things that will most hinder a wrongful death case is someone who maybe didn't have a good relationship with their kids or didn't provide and stuff like that would affect wrongful death cases. It really comes down to relationship, whether they provided economically for family members and the depth of the relationship with the family members.

Pearl Carey (11:55):

Would you mind defining some of those relationships that might be important in a wrongful death claim?

Dirk Derrick (12:00):

It's a relationship with the spouse and the children most of the time. If there's no spouse or children, then it's a relationship with the parents.

Pearl Carey (12:00):

Okay.

Dirk Derrick (12:07):

And there's people who got close relationship with parents and spouses and children. There's people who don't and that makes a difference. If you're a father of a child but you never see the child is different than somebody who's close to the kids and coaching them and see them every day and cooks for them and that kind of stuff.

(12:30):

If you think about it, you're thinking about the damage to other people because of the death of the person who passed away.

Pearl Carey (12:37):

Okay.

Dirk Derrick (12:38):

So if I'm close with my spouse, we're together, I'm supporting her, we see each other. We eat supper together every night. Her... And then I pass away, her loss is going to be greater than if someone doesn't spend time with their spouse. You know what I mean?

Pearl Carey (12:38):

Right.

Dirk Derrick (12:59):

I mean, just you think about the degree of togetherness or the degree of the relationship, all of that comes down, all determines the value of a wrongful death case.

Pearl Carey (13:10):

So if the person who unfortunately died and their family member didn't have that close of a relationship, would you still have a case or how would that work going forward?

Dirk Derrick (13:22):

Yes, and you still have a case. It makes it more difficult to show.

Pearl Carey (13:25):

Okay.

Dirk Derrick (13:26):

If you think about building cases, I've used the metaphor of building custom homes, and in this case, you think about building a wrongful death case. You're looking at the elements you have, you're looking at the facts you have and building the strongest case possible. If you have economic support to the ones left behind and you have closer relationships, those are stronger facts to build a value of a case than if you don't. But you can still build the case. You can still build a house even if you don't have marble countertops. So it's all goes into the building of the claim and you would still have a claim.

Pearl Carey (14:07):

Right.

Dirk Derrick (14:08):

It's just what we're trying to show to maximize the recovery for those who are left behind and who now have significant loss financially and non-economically.

Pearl Carey (14:19):

So what you're saying is that maybe being able to prove a strong relationship between the person who passed and their family members that are alive might be important, but it's not going to be the end all be all of a wrongful death?

Dirk Derrick (14:33):

That's right.

Pearl Carey (14:33):

Okay.

Dirk Derrick (14:33):

You look at it this way, if the at-fault driver did something reckless to where you can get, where punitive damage come into play, you can get huge punitive damages on a wrongful death case when there's not a great relationship between the family members. It is one element. The actual damage part, you're looking at relationships and economic support.

Pearl Carey (14:58):

Right.

Dirk Derrick (14:58):

But you're also looking at the recklessness of the at-fault person or the at-fault driver or whoever caused it to see whether or not there's punitive damages. And that's a different set of damages. It's damages to punish the wrongdoer.

Pearl Carey (15:12):

Right.

Dirk Derrick (15:13):

And it's not the actual damages people have sustained. So it's all investigated in every case and you use the strongest things you have.

Pearl Carey (15:22):

So what are the most common wrongful death cases you might see as an attorney?

Dirk Derrick (15:26):

Car accidents, premise liability. It can be anything. Anything that can injure somebody, can kill somebody. So whether it's a premise case, whether it's a workers' comp case, a car wreck case, they come from all different types of causes.

Pearl Carey (15:42):

What types of compensation are available for those who are impacted by a wrongful death situation?

Dirk Derrick (15:48):

Medical expenses, funeral expenses, loss of earnings and economic support, loss of companionship, mental anguish, pain and suffering types.

Pearl Carey (15:59):

Are there certain factors that families should be considering when they're looking to choose an attorney for their potential wrongful death case?

Dirk Derrick (16:05):

I think it's like anything else. You want someone who's experienced in the wrongful death actions but also experienced the underlying cause. There's attorneys who do this every day, who've got systems and processes and things set up in order to properly investigate and properly build these cases. I'd suggest you find someone who's got the experience and the background in building these cases.

Pearl Carey (16:29):

So what kind of steps are involved in pursuing a claim like this?

Dirk Derrick (16:34):

When we get wrongful death claim, we kind of jump on it similar to the other claims.

Pearl Carey (16:38):

Okay.

Dirk Derrick (16:39):

Where you have investigation, you have investigation of liability, damages, and collectibility.

Pearl Carey (16:46):

Right.

Dirk Derrick (16:47):

There's times when you cannot get all the facts without a lawsuit. Before lawsuit, you don't have the ability to subpoena things, you don't have the ability to take depositions. You can ask wrongful parties, give me the surveillance inside of your building.

Pearl Carey (17:04):

But they might not.

Dirk Derrick (17:05):

They might not. Give me your phone records, tell me what bar you were at before you got intoxicated. But there's nothing legally requires them to tell you that stuff and those facts matter and they can be huge as far as determining the value of the claim.

Pearl Carey (17:21):

It can make or break a case.

Dirk Derrick (17:22):

That's right.

Pearl Carey (17:22):

Yeah.

Dirk Derrick (17:23):

So if they won't give it to you, your only option is to file suit and start the discovery process. When you file suit, you go through a period called discovery. That's what we said. We discover everything about the other side. We discover facts that they have in their possession. We discover witnesses and policies and what happened from their standpoint. When we go to trial, by the time we get to trial, attorneys know what the other people are going to on the jury stand. I mean, we know. Cause I want to know what they're going to say when they get on the...

Pearl Carey (17:56):

What's going to happen. Yeah.

Dirk Derrick (17:57):

So that we can be prepared for it.

Pearl Carey (17:58):

Absolutely.

Dirk Derrick (17:59):

So in wrongful death cases, if they won't give you the facts, you have to file suit, go through the discovery process. If we get most of the facts without litigation, a lot of times in car wrecks if we can get the data pulled from the other car without litigation, if they agree to let us pull this data and see what the driver is doing before or if we can get 98% of the facts, we may focus group it before litigation to try to prevent unnecessary litigation. See what juries think about it.

Pearl Carey (18:28):

Okay.

Dirk Derrick (18:29):

If we can't get the facts, we file the suit, go get the facts during discovery and then do our focus group and then let people see both sides. At that point, after we've got most of the facts, if not all the facts, then use those results to leverage resolution of the case. And if they do not resolve the case at that time, we will start getting ready for trial. Getting ready for trial is a different animal. You have to get your laws, your instructions, your medical records, everything lined up to go to court, and then we focus a third time to see what a focus group thinks about the case before we go. So by the time we go to trial, we got a good understanding of what the particular community that that case is in, what they think about our issues and our facts and our damages before we go to trial.

Pearl Carey (19:22):

So this can go for any case, but wrongful death especially. How long would it typically take to hear back if you just filed a lawsuit and you want to continue with litigation in that manner?

Dirk Derrick (19:32):

Right now in each county has different backlog, our number of cases that's been filed. COVID, not just way back, but after COVID left, we now back up to 13 or 14 months after filing.

Pearl Carey (19:44):

Okay.

Dirk Derrick (19:45):

So if you jump on it, you file a suit, go ahead and do the discovery. You can come up for trial in 13 or 14 months after the filing.

Pearl Carey (19:53):

So after you filed a lawsuit, is there a chance that it still won't go to trial?

Dirk Derrick (19:57):

Oh yeah, big chance.

Pearl Carey (19:58):

Okay.

Dirk Derrick (19:59):

I mean, still 99% of cases that are filed don't get tried.

Pearl Carey (20:02):

Right.

Dirk Derrick (20:03):

Understand that when everybody discovers all the facts and everybody knows what the jury's going to hear, a lot of uncertainty is now being removed.

Pearl Carey (20:12):

Or even what the juries might say, if you focus group the case.

Dirk Derrick (20:15):

That's right. The focus group is the additional icing we put on the cake, but for the longest time we get all the facts. The only thing left to fuss about is what 12 people are going to say about now what we know the jury's going to hear.

Pearl Carey (20:30):

Right. What they're going to do with all the information that's now accumulated.

Dirk Derrick (20:33):

And we focus it in order to show everybody involved what these people think about both arguments.

Pearl Carey (20:40):

Right.

Dirk Derrick (20:40):

It's different if I tell the other side, well, I don't think that argument's going to work in Marie county or Berkeley County.

Pearl Carey (20:48):

Right.

Dirk Derrick (20:49):

It's entirely different for them to watch a video of two juries talking about the issue and saying, don't believe that. I mean that's people who are unrelated, don't have a dog in the fight, don't know which side we're representing when we focus it and giving their honest opinions and it carries a lot of weight, it helps us prevent unnecessary litigation and to shorten litigation and very much reduce the amount of times we have to go to court.

Pearl Carey (21:17):

Absolutely. So I know that you said focus groups can tend to speed up this litigation process for one of these types of cases. What was it like before you had focus groups?

Dirk Derrick (21:26):

It was tougher. The insurance industry has always had three leverages on us and three leverages on our clients and even on wrong-for-death victims. They have the leverage that they know people don't like to file a lawsuit. There's people who don't want to file a lawsuit. They have had the leverage of time where the longer they can drag something out, the more likely somebody would take less than the real value, and they have had the leverage of uncertainty. Uncertainty scares people as far as you never know what 12 jurors are going to do, which is true, but they've always owned those leverages.

(22:06):

When we got into focus group cases, I first did it just because we found out good information on beat cases where we used to focus group and I said, "Man, I'd like to be able to find out good information for other clients." So we started doing it, but the byproduct has been that we've been able to take what our communities think and share it with the other side and flip those leverages. We have flipped the leverage of uncertainty. We now have an idea what people are going to do about it.

Pearl Carey (22:34):

Right.

Dirk Derrick (22:35):

We have flipped the leverage of time by taking this trial process with a jury that happens three and four years after the event and moving it up before you ever file a lawsuit.

Pearl Carey (22:46):

That's really important.

Dirk Derrick (22:47):

Very important, especially to people who have gone through a wrongful death or serious injuries where they need compensation quickly to get back to their lives. I personally believe that the focus group experience is the best thing we've ever done for our clients.

Pearl Carey (23:01):

Yeah.

Dirk Derrick (23:02):

They all want real value. They all want it as quickly as possible.

Pearl Carey (23:07):

Of course, especially in a situation like this.

Dirk Derrick (23:10):

Yeah. And this kind of meets both of those require... this meets both of those criteria. It speeds up the process and shows them what the real value is. And if we can show to everyone who's involved without going to litigation, and if we do have to go to litigation to try to shorten the litigation by using the second round of focus group jury research, it helps our clients. And that's what the ultimate thing to do is to get them to let them know what the real value is and then get it for them as quickly as possible.

Pearl Carey (23:41):

Especially in a case like this where maybe it would be painful emotionally to have to keep going over this for a year, you know, if trial does have to happen.

Dirk Derrick (23:49):

And that's absolutely right and it's absolutely known by the other side that people don't want to do it. And so anything we can do to flip leverage, and this is the only thing I have found in 35 years that can flip it. We can actually, insurance companies in South Carolina, liability insurance companies have a duty to act in good faith, and that means they're supposed to act reasonable. For the longest time, they said, "Dirk, we're acting reasonable. We just disagree with what 12 people are going to say about it." Well, if we do a good job on getting all the facts presented and presenting the case fairly from both sides, and then 12 people say, "The plaintiff is right, defendant, you're wrong. And the value of the case exceeds your policy limits," it puts a lot of pressure on the insurance company to pay that claim.

Pearl Carey (24:39):

And it can kind of take away from the unpredictable things that could possibly happen. If the case does go to trial.

Dirk Derrick (24:45):

It reduces the uncertainties.

Pearl Carey (24:48):

Yeah, absolutely.

Dirk Derrick (24:49):

There's always uncertainties. If you try a case, it'll be uncertainty, but if you focus it once, focus it twice, focus it three times, and they come up in the same range and they respond to evidence in a similar fashion, it gives the attorney's confidence and it gives our clients confidence if we have to try the case. It gives them confidence in how people respond to facts and damages.

Pearl Carey (25:14):

Gotcha.

Dirk Derrick (25:17):

The numbers, it's going to be data points. We're not saying that number's going to be what this jury gives, but if you have six numbers or eight numbers and they're in a range, you start to feel more comfortable.

Pearl Carey (25:26):

Right, absolutely. So I understand this was obviously a pretty heavy topic, so I want to thank all of our listeners for tuning in today. This was regarding the truth about wrongful death claims and Dirk, if you wouldn't mind just going over a few of the points that we touched on here today, that would be great.

Dirk Derrick (25:41):

To summarize today's podcast, the Truth about Wrongful Death Claims, I would say, number one, I hope you never need the information you just got. Number two, remember that the personal representative brings these claims on behalf of the estate and the survival action and on behalf of the spouse and children for the wrongful death action. And number three, probably the most important thing or takeaway is it needs to be investigated quickly before evidence disappears. So if you know someone, a family member, or a friend who's going through this, you may want to be the person who takes control over the investigation so evidence doesn't disappear so that the case can be built at a later date if and when they decide to pursue.

Pearl Carey (26:32):

I can't ever imagine having to go through a situation like this, but if any of our listeners know someone who might need this information, please don't hesitate to pass this podcast along. And thank you all joining us.

Voiceover (26:46):

Thank you for joining us on The Legal Truth Podcast. If you have questions that you would like answered on a future episode, please send them to Thelegaltruthatderricklawfirm.com. If you would like to speak to us directly, call us at (843) 248-7486. If you find the podcast valuable, please leave us a five star review and share The Legal Truth with your neighbor, friend, or family member who is seeking reliable information about a South Carolina personal injury or workers' compensation claim. Dirk J. Derrick of the Derrick Law Firm Injury Lawyers is responsible for the production of this podcast. Located at 901 North Main Street, Conway, South Carolina.

(27:27):

Derrick Law Firm Injury Lawyers has included the information on this podcast as a service to the general public. Use of this podcast and any related materials does not in any manner constitute an attorney-client relationship between Derrick law firm, injury lawyers, and the user. While the information on this podcast is about legal issues, it is not intended as legal advice and should not be used as a substitute for competent legal advice from a licensed professional attorney in your particular state. Anyone seeking specific legal advice or assistance should retain an attorney. Any prior results mentioned, do not guarantee a similar outcome.

(27:55):

The content reflects the personal views and opinions of the participants in the podcast and are not intended as endorsements of any views or products. This podcast could contain inaccuracies. The information contained in this podcast does not constitute legal advice and is not guaranteed to be correct, complete, or up to date as laws continue to change.

(28:10):

In this podcast, you'll hear information about focus groups. Please note that not all of the firm's cases are presented to a focus group. Additionally, when speaking about juries or jurors in relation to a focus group, we are speaking of focus group participants and not actual trial juries or jurors.

 

Dirk J. Derrick
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South Carolina Lawyer Dirk Derrick helps victims recover from car accidents, personal injury & wrongful death.