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Wrongful Death And Potential Damage Recovery

Wrongful death is a tort that occurs when the death of the individual is caused by a wrongful act, neglect, or default, allowing the injured party to maintain an action to recover damages. White v. Yup, 85 Nev. 527, 532, 458 P.2d 617, 620 (1969). In Nevada, wrongful death is governed by NRS § 41.085. Under the statute, there are two methods of recovery. First, the heirs of the decedent are able to recover. An heir is defined as “a person who…would be entitled to succeed to the separate property of the decedent if the decedent had died intestate.” Nev. Rev. Stat. § 41.085(1). The second method of recovery is recovery by a personal representative. A personal representative refers to “an executor, an administrator, a successor personal representative, a special administrator and persons who perform substantially the same function under the law governing their statutes.” NRS § 132.265. Under the wrongful death statute, these plaintiffs can each recover damages for different damages. Both the personal representative and the heirs of the decedent are able to maintain an action each for the damages against the individual who caused the death. NRS § 41.085(2). Additionally, if another individual is responsible for the wrongful act, both the heirs and the personal representatives maintain an action against the other individual as well. Id. 

The actions against the individual that caused the wrongful act or neglect may be joined by the personal representative and the heirs of the decedent if they arise out of the same act. NRS § 41.085(3). Thus, the estate of a decedent and the heirs of a decedent may bring claims against the same actor if their claims arose from the same wrongful act. Further, heirs and personal representatives recover different damages under the statute. For heirs, they may receive pecuniary damages for grief or sorrow, loss of probable support, loss of companionship, loss of society, loss of comfort and loss of consortium. NRS § 41.085(4). Additionally, the heirs may also recover for damages for pain, suffering, or disfigurement of the decedent. Id. As for the personal representative of the decedent, they may recover any special damages. NRS § 41.085(5). These damages can include medical expenses that were incurred by the decedent before the decedent’s death, funeral expenses, and potentially burial expenses. Id. Furthermore, the personal representative can recover additional penalties, such as exemplary or punitive damages that the decedent would have recovered if they had not died. Id. Punitive damages are damages meant to punish the wrongful actor. However, the personal representative of a decedent may not recover damages for pain, suffering, or disfigurement of the decedent.  Id. The punitive damages that a decedent can recover are based upon the compensatory damages that are recoverable. Under NRS § 42.005(1), if the compensatory damages are equal or greater than $100,000, then the punitive damages may not exceed three times the amount of compensatory damages. NRS § 42.005(1)(a). If the compensatory damages are less than $100,000, then punitive damages may not exceed $300,000. NRS § 42.005(1)(b). Because the estate can only recover special damages, and not general damages, the estate will typically only be allowed to recover $300,000.

Thanks to our friends, the accident lawyers at Eglet Adams, for their insight on wrongful death laws in Nevada.