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Jon Lewis
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What’s A Death Case Worth in Alabama?

15 comments

Does it matter if a car accident occurs in Alabama versus another state? In a big big way!!!! Why? Well, first because different states have different jurors and different beliefs on the values of these types of cases. But, more importantly, the law in Alabama regarding a death is different than every other state in the country. Yes, EVERY other state in the country.

How is it different? A car accident, industrial accident, medical malpractice incident, or any other incident in Alabama which involves a death is governed by Alabama’s Wrongful Death Statute. The Wrongful Death Statute provides:

Section 6-5-410

Wrongful act, omission, or negligence causing death.

(a) A personal representative may commence an action and recover such damages as the jury may assess in a court of competent jurisdiction within the State of Alabama, and not elsewhere, for the wrongful act, omission, or negligence of any person, persons, or corporation, his or their servants or agents, whereby the death of his testator or intestate was caused, provided the testator or intestate could have commenced an action for such wrongful act, omission, or negligence if it had not caused death.

(b) Such action shall not abate by the death of the defendant, but may be revived against his personal representative and may be maintained though there has not been prosecution, conviction or acquittal of the defendant for the wrongful act, omission, or negligence.

(c) The damages recovered are not subject to the payment of the debts or liabilities of the testator or intestate, but must be distributed according to the statute of distributions.

(d) Such action must be commenced within two years from and after the death of the testator or intestate.

(Code 1852, §§1940, 1941; Code 1867, §§2299, 2300; Code 1876, §§2641-2643; Code 1886, §2589; Code 1896, §27; Code 1907, §2486; Acts 1911, No. 455, p. 484; Code 1923, §5696; Code 1940, T. 7, §123.)

While this statute does not state damages are strictly punitive, the Supreme Court of Alabama has interpreted it that way, and the Alabama Pattern Jury Instructions clearly set forth the law:

Furthermore, any confusion on the part of the jury regarding the proper assessment of damages in this case should have been dispelled by the following charge given at the close of the arguments of counsel:

“In a suit brought for a wrongful act, omission or negligence causing death, the damages recoverable are punitive and not compensatory; damages in this type of action are entirely punitive, imposed for the preservation of human life and as a deterrent to others to prevent similar wrongs.

“The amount of damages should be directly related to the amount of wrongdoing on the part of the defendant or defendants. In assessing damages, you are not to consider the monetary value of the life of the child, for damages in this type of action are not recoverable to compensate the [family] of the deceased from a monetary standpoint on account of his death, nor to compensate the plaintiffs for any financial or pecuniary loss sustained by the family of the deceased on account of his death.”

(Emphasis added; substantially quoting Alabama Pattern Jury Instructions § 11.18.)

Quoting Atkins v. Lee, 603 So.2d 937, 942-943 (Ala. 1992).

Consequently, in Alabama, you cannot argue to the jury that they should compensate the family for the death of their father or mother. You can only argue that they can punish the person at fault. This is difficult if the other person simply ran a red light. It wasn’t intentional. The same is true for the situation with Toyota. Toyota doesn’t want to see people die as a result of the defect in its accelerators, but things like this happen, and a family should be compensated for Toyota’s defect. They should not have to argue that Toyota should be punished because that can be an extremely difficult argument.

The 49 other states allow for compensation in wrongful death claims. They allow you to argue that a father who is killed had a life expectancy of 30 years, and as a result of his death, the family will lose that income.

What law do you think is better? Alabama’s or the other 49 states? We’d like to know.

15 Comments

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  1. Michael Zicherman says:
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    Fascinating. I certainly understand and can appreciate the laudible intentions of the Alabama legislature – all life is equally valuable and precious. They obviously were seeking to correct the anomoly in the law of torts and compensatory damages, whereby negligence that’s results in death of someone that does not have an income stream is somehow worth less in the eyes of the law than a person that make $1 million per year. When compensatory damages are the only deterent for negligent conduct that results in death, there is less of a deterent if the potential victims of the negligence are less affluent people. There seem to be several problems, though, with Alabama’s egalitarian legislation. How is a jury to competently assess a measure of damages? It will be completely arbitrary. And, different juries are liekely to award different “punitive” awards for the exact same type of accident. Further, it completely ignores the reality of the economic loss suffered by the decedent’s family. Is it right or fair that if a successful person who supported his family in a particularly well-to-do lifestyle is killed in a simple inadvertent car accident, for which a jury does not want to punish the tortfeasor with a large adverse judgment, that the decedent’s family should face foreclsoure of their own and other consequences because the no longer have the income stream generated by the decedent? They should be compensated for their direct loss. However, non-economic losses (e.g., I’ll never get to see my daddy again) are intangible and unquantifiable and suffer from the same incalculable infirmities as quantifying how much to punish a tortfeasor under the Alabama statute, and I feel these types of damages should probably be dispensed with.

    After my long preface, the short response to your inquiry is that neither approach is better. The Alabama law provides deterence for wrongful conduct, but fails to compensate people for their actual loss, and the deterent award bears no relationship to the loss actually suffered. On the other hand, under the law of other jurisdictions, tehre is only deterence from wrongful conduct if the potential victim has substantial means (e.g., damages from killing a homeless person or child are less than a successful stocktrader). Perhaps a combination of the two approaches would yield an equitable result, such that the damages award would be the greater of the two alternatives; the punitive award or the compensatory award. That way, there is always a deterent effect in place for the tortfeasor, and the decedent’s family can be assured that they will be compensated for their actual loss.

  2. Jon Lewis says:
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    What a thoughtful comment. You make some interesting points and ones our legislature should probably consider.

  3. Lee says:
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    Wow, that is odd. I never realized that the law states that wrongful death must be punitive. Aren’t punitive damages sort of rare? Most tort law is based on the idea of compensation not punishment – or did I miss something in my one semester of law school?

  4. Mike Bryant says:
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    Are there coverage issues or are policies written to deal with the punitive aspect? Seems like a different reasoning then what would be the typical tort claim? How do they look at those that are severally injured? Many times those injures can cause even great unimaginable consequences. Is there an intent that you have to prove at trial? All together I don’t like this remedy.

  5. Jon Lewis says:
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    Lee, you did not miss something in law school, but Alabama is Alabama. Punitive damages are rare, contrary to popular belief. It is difficult at best to make this argument to a jury. As a plaintiff’s attorney, you cringe on two jury charges in Alabama: Contributory negligence and wrongful death damages.

  6. Jon Lewis says:
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    Mike, it’s not really dealt with in insurance coverages. They have to cover for wrongful death. If it is a small policy, they will fork over the limits. The difficulties arise in larger cases with individual defendants. It is hard to get a jury mad at another individual. We tried one case, and the jury rendered a relatively small verdict based upon what they thought the defendant could afford. As you are probably aware, plaintiffs cannot mention the fact that a defendant has insurance, and therefore, when it’s an individual, juries don’t want to ruin their life too.

    In fact, some defense attorneys will argue that the defendant has been punished enough because they will have to live with the fact that they caused this death for the rest of their life. Now that makes a lot of sense. Forget about the surviving family and worry about the person who caused the death.

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    This is a very interesting article. I had no idea that Alabama saw wrongful death so differently than the rest of the country. I can also see how Alabama’s law makes certain cases more difficult; however, it also makes a whole class of cases viable that would necessarily fail with a compensatory wrongful death law.

    For instance, in New York, there is little value in a wrongful death claim by an elderly, retired person, even if the circumstances of their death was horrific (absent, of course, the potential for a decent conscious pain and suffering claim). The same is often true regarding infant deaths. Under the Alabama law, those claims would be viable, depending on the circumstances of the deaths.

    I can’t say offhand which one is better. Obviously, they serve different victims. The compensatory system favors victims who were earning a decent income, whereas the punitive system favors those without income. It is a shame there is no way to incorporate the two. In an ideal world, a party would be able to elect the form of relief sought, but in our world of “tort reform” I don’t see plaintiffs given more rights.

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    Great post, Jon. I think we would be in great shape if Montgomery would revise the statute to what everyone else in the country does. That said, until that happens, we have to deal with this the best we can. Personally, I think the best way to do that is to remind the jury that the purpose of punitive damages is two-fold. Yes, there is an aspect of punishment. But I think jurors can relate better if you focus on the deterrent aspect of punitive damages. Punitive damages have two purposes: 1) punishment, and 2) to deter similar conduct in the future. Keep the emphasis on deterrence.

    In the example of the person who ran the red light, talk about the percentages with running red lights and fatalities. As a community we must stand up and say that running red lights is not acceptable in our community. Your punitive damages award will deter people from running red lights, which will save lives and make all of us safer.

    With the Toyota brake issue, again focus on deterrence. Your punitive damages award in this case will deter automakers from negligent design of their cars. Talk about the percentages of fatalities and injuries with defective products, certainly with defective braking systems. Deter their negligence, etc. Keep the community safe. Send a message that this conduct, although maybe not intentional, is unacceptable, costs lives, destroys families, destroys communities, and must not be allowed to continue in the community.

    Hope everyone has a great Valentine’s Day. Ginger and I will be celebrating Joe Cain Sunday as part of Mobile’s Mardi Gras on Valentine’s Day.

  9. Mark Bello says:
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    What a fascinating discussion! The statute’s attempt to resolve a problem created another. Are pro-justice forces in Alabama pursuing a fix? Meanwhile, Jordan’s thoughtful response seems to be the temporary remedy; if you can get the jury to focus on deterring conduct, the “punishment” aspect of damages seems less harsh. As someone who provides lawsuit funding all over the country, I have received some painful financial lessons in the nuances of various state laws in certain areas. In this litigation climate we can take nothing for granted. Again, great post and follow-up discussion. Jon: How receptive would your current legislature be to considering a fix?

  10. Mark Bello says:
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    Sorry, while Jordan’s response was also thoughtful, I was referring to Martin’s.

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    Thanks, Mark. Have you had a chance to read, “The Reptile” by David Ball? Truth be told, I have not, although I look forward to it. As I understand the premise behind the book, or at least as it has been told to me, the concept here is the same. Juries get more excited about protecting the community from harm than they do about punishment. There is a reptillian part of our brain that is all about survival. Survival and protection go hand in hand. If you can activate the reptillian part of the jurors’ brains, in essence getting them to think about protecting the community (which of course protects the individual juror, his or her family, etc., as well), then you have gone a long way to winning your case. If their verdict can protect the community, then the jurors’ chances of survival go up. Reptillian stuff here. Check out the book, positively explains it better than I can. I also recommend “Theatre Tips and Strategies for Jury Trials,” again by David Ball. I have read that one and it is outstanding.

  12. Jon Lewis says:
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    Good points Martin. David Ball is Great! He is probably one of the best teachers around on this subject – second only to Greg Cusimano.

  13. Jon Lewis says:
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    Winner of the Valentine’s Prize – Michael Zicherman. Thank you for all who participated.

    PRIZE:
    Congratulations Michael! Jon Lewis has sent you a gift. You will be receiving the following shortly:
    Men’s Health Magazine – 1 Year Subscription

  14. Amanda Wick says:
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    The other interesting thing that the Alabama statute has to contend with is how the lay offs and employment situation in this country will affect how much people want to “punish” companies. It used to be that you could paint the big, bad corporation and people saw it as David vs. Goliath. But now, unless it’s a Bank (which pretty much everyone despises now), you have to worry about jurors seeing that company (like a Toyota, for example) as THEIR company, with their jobs and pensions on the line if you “punish” it. I don’t think we had that before the way we do now in an economy where every job and every business that’s still up and running seems precious and necessary. I think that makes the wrongful death action damages in Alabama an even tougher row to hoe now.

  15. Jon Lewis says:
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    Amanda, you make some good points. It has always been tough to argue punishing the defendant in many situations unless alcohol or serious wrongful conduct is involved. Martin’s comments about deterrence is one of the best ways to attack it. It is a tough sell though, especially if you live in an area where the defendant employs many residents.