Oregon law has long recognized the importance to society of holding wrongdoers accountable for their actions. However, when a person tragically dies as the result of the negligent or intentional acts of another, the deceased obviously is unable to take any action to enforce this accountability. This leads many people to ask us who can bring a wrongful death action on behalf of a deceased loved one.
Wrongful Death Is a Civil Cause of Action
To many people, the term “wrongful death” sounds like a crime, and crimes are prosecuted by the appropriate governmental agency, such as the District Attorney’s office. And, of course, conviction of a crime results in penalties such as fines, probation, and incarceration. However, wrongful death is actually a civil action. Thus, as with all civil actions, the proper plaintiff must sue the correct defendant, and a prevailing plaintiff may recover the appropriate damages. Here, we’ll address the question – “who is the appropriate plaintiff?”
Who Is the Appropriate Plaintiff in a Wrongful Death Action?
Oregon Revised Statutes Section 30.020 provides that a wrongful death action can be brought by the decedent’s “personal representative.” “Personal representative” is a probate term, meaning the person who administers the estate of a deceased person. This person is sometimes also referred to as the “executor” of the estate. The personal representative is usually a family member, although this is not always the case. Often times, the beneficiaries can agree on the person they would like to serve as the personal representative. However, under Oregon law, a judge must ultimately approve the person, who the judge must find to be “qualified” and “suitable.” Oregon Revised Statutes Section 113.085 provides that the judge should give preference in the following order:
- an executor named in the deceased’s will;
- a surviving spouse of the decedent (or a person chosen by the spouse);
- the next of kin of the decedent (or a person chosen by the next of kin).
The law lists additional preferences for cases involving decedents receiving public assistance or beneficiaries of veterans.
Responsibilities of the Personal Representative
A personal representative is a fiduciary who has many specific responsibilities defined by Oregon law. In a wrongful death action, the personal representative has an even tougher job, including the prosecution of the lawsuit, and helping decide if settlement offers should be accepted. Ultimately, the personal representative must disburse the proceeds of the estate in accordance with law. This responsibility can be further complicated by the fact that the wrongful death case can have a broader class of beneficiaries than the rest of the estate.
Distributing Proceeds Following Settlement or Judgment
Ultimately, a wrongful death action will either be settled or proceed to trial. If a verdict and judgment are received in favor of the plaintiff at trial, or if proceeds are received as the result of a settlement of the case, the proceeds must be properly apportioned if there is more than one beneficiary. In that event, Oregon Revised Statutes Sections 30.040 and 30.050 provide that the proceeds are to be distributed, as follows:
- payment or reimbursement for costs, expenses, and fees incurred in the prosecution or enforcement of the claim;
- payment or reimbursement for reasonably incurred medical services (such as for doctors, hospitals, and nurses) and burial and memorial services for the decedent;
- apportioned and paid to beneficiaries as they agree. If the beneficiaries do not agree, the proceeds are distributed by the appropriate judge, “in accordance with the beneficiary’s loss;”
- any remaining damages received by the estate are distributed according to the laws of intestate succession of the State of the decedent’s domicile, or as agreed by the beneficiaries.
Call with Questions
As you can see, Oregon’s laws concerning wrongful death actions can be complicated. If you need help deciphering these laws, or would like a free consultation, please call us. The experienced wrongful death lawyers at Nelson MacNeil Rayfield routinely handle wrongful death cases and would be happy to assist you.