Wrongful car accident death

Asked over 2 years ago - Baton Rouge, LA

My bother was killed in a car accident. I wanted to know who is the person that is suppose to be suing the other person that hit them.He had a son but was never married and my mom was his beneficiary on his life insurance. So who is suppose to sue the person that killed him the sons mother or my bothers mom?

Attorney answers (4)

  1. David Sherman Cook

    Contributor Level 10


    Lawyers agree

    Answered . Articel 2315.1 of the Louisiana Civil Code provides:

    Art. 2315.1. Survival action

    A. If a person who has been injured by an offense or quasi offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased in favor of:

    (1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.

    (2) The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving.

    (3) The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.

    (4) The surviving grandfathers and grandmothers of the deceased, or any of them, if he left no spouse, child, parent, or sibling surviving.

    B. In addition, the right to recover all damages for injury to the deceased, his property or otherwise, caused by the offense or quasi offense, may be urged by the deceased's succession representative in the absence of any class of beneficiary set out in Paragraph A.

    C. The right of action granted under this Article is heritable, but the inheritance of it neither interrupts nor prolongs the prescriptive period defined in this Article.

    D. As used in this Article, the words "child", "brother", "sister", "father", "mother", "grandfather", and "grandmother" include a child, brother, sister, father, mother, grandfather, and grandmother by adoption, respectively.

    E. For purposes of this Article, a father or mother who has abandoned the deceased during his minority is deemed not to have survived him.

    Since, according to your question, it appears that your brother had a son, the son would have a cause of action for the death of your brother and would also have a "survival action", which is a claim based on any pain and suffering that your brother may have experienced prior to his death. Assuming that the child is less than 18 years of age, the mother of the child would likely qualify as the "Natural Tutrix" of the child, and would be the logical person to bring any suit - on behalf of the child. Because your brother had a child, neither you nor your brother's mother would be entitled to damages.

    David Cook is an Attorney and Mediator licensed to practice law in the State of Louisiana. This response is not... more
  2. Christian K. Lassen II


    Contributor Level 20


    Lawyer agrees

    Answered . In your state, a surviving spouse, parent or guardian, siblings or grandparents may file.

    Licensed in PA & NJ. 29% Contingency Fee. Phone: 215-510-6755 www.InjuryLawyerPhiladelphia.com
  3. Max Jeffrey Meyers

    Contributor Level 8


    Lawyer agrees

    Answered . I'm so sorry for your loss. My prayers are with your family.

    The question I think you should be asking is how many family members can sue for wrongful death of your brother. It looks like in your state a surviing spouse, child, parent or guardian, siblings, or grandparents may potentially have wrongful death claims they can make. However, there are often special rules in regards to parents, siblings and grandparents. That's why it's super important to get the advice of an experience Louisiana wrongful death lawyer. Often in wrongful death cases there are multiple family members who assert claims.
    The implications of the case are too important not to have an expereince attorney involved.

    Here in Washington state, a probate has to be opened and an executor appointed to act for the estate and guardian(s) have to be appointed for any minor children before a wrongful death lawsuit can be filed. These kinds of special rules can make it hard for a family member to figure out what to do.

    In your brother's case his child definitely should bring a wrongful death claim. Whether you or your parents have claims are questions for an attorney in your state. An attorney should give a free consultation with no strings attached so you can decide how to proceed.

    Disclamer: This response is not legal advice and does not create an attorney/client relationship. The response is... more
  4. James Arthur Goldstein


    Contributor Level 5


    Lawyer agrees

    Answered . anyone can file suit as next friend of the son. Whoever is appointed the son's guardian however probably can take control of the suit.

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