WRONGFUL DEATH CLAIMS IN OREGON

This article is a brief summary of wrongful death claims in Oregon. In short, a wrongful death claim is a claim against an individual whose negligent conduct or acts lead to an injury to a person that ultimately caused the injured person to die.

Who May Assert A Wrongful Death Claim? The personal representative (sometimes referred to as the executor) for the estate of the decedent may assert a wrongful death claim against the individual(s) responsible for causing the injury that led to the death.

What Can Damages Be Asserted for A Wrongful Death Claim?
Oregon Revised Statute (“ORS”) 30.020 sets forth the types of damages and the classes of people who may recover damages under a wrongful death claim. In summary, the statute allows the following types of damages:

1. Medical Services. The estate of the deceased person has the right to recover all costs for medical services rendered to the deceased individual as a result of the injuries sustained.
2. Memorial and Burial Expenses. The estate of the deceased person has the right to recover all costs incurred for memorial and burial expenses incurred for the benefit of the deceased person.
3. Injury to the Deceased. The deceased person’s estate has the right to recover the damages suffered by the deceased person prior to their death. This includes compensation for the pain, suffering, disability, loss of income, pecuniary loss, and loss of enjoyment of life suffered by the deceased person between the time of injury and death. Any amounts recovered on behalf of the deceased person’s estate will pass according to the deceased person’s estate planning documentation (i.e. Will) or according to Oregon intestate succession laws in the event of no estate planning documents.
4. Injury to the Deceased Person’s Family. The deceased person’s family has the right to recover damages for pecuniary loss (i.e. loss of financial support from the deceased person). They also have the right to recover for the loss of society, companionship and services of the deceased person. Family is defined to include spouses, children, stepchildren, stepparents, and parents. The proceeds recovered may be apportioned among the family members by agreement. If the family members cannot agree on how the money should be divided, the Oregon statutes provide a process whereby a court hearing will be conducted so that a judge can make a determination regarding apportionment.
5. Punitive Damages. In certain cases, depending upon the egregiousness of the actions that caused the injury to the deceased person, punitive damages may be recovered. Punitive damages can be described as damages to punish the at-fault individual(s) for their conduct in causing the injury to the deceased person.

When Must The Claim Be Asserted? Generally, the claim must be asserted within three years of the injury causing the death.

What Are Other Claims Available? As an alternative to a wrongful death claim, the estate of the deceased person may decide to file a negligence claim under ORS 30.075. The benefit of asserting a claim under ORS 30.075 is that it allows the recovery of attorney fees incurred in prosecuting the claim. In certain circumstances, the recovery under ORS 30.075 may be more than the recovery under a wrongful death claim. Generally, both claims can be asserted, but damages can only be recovered under one or the other, not both. A negligence claim will allow the estate of the deceased person to recover the damages suffered by the deceased person prior to their death. This includes compensation for the pain, suffering, disability, loss of income, pecuniary loss, and loss of enjoyment of life suffered by the deceased person between the time of injury and death. Any amounts recovered on behalf of the deceased person’s estate will pass according to the deceased person’s estate planning documentation (i.e. Will) or according to Oregon intestate succession laws in the event of no estate planning documents. Generally, the negligence claim must be asserted within two years of the injury if asserted before the injured person’s death, or within three years of the injury if not asserted before the injured person’s death.

Oregon Statutes Governing Wrongful Death Claims

Below are the pertinent Oregon statutes controlling wrongful death claims.

30.020 Action for wrongful death; when commenced; damages.

(1) When the death of a person is caused by the wrongful act or omission of another, the personal representative of the decedent, for the benefit of the decedent’s surviving spouse, surviving children, surviving parents and other individuals, if any, who under the law of intestate succession of the state of the decedent’s domicile would be entitled to inherit the personal property of the decedent, and for the benefit of any stepchild or stepparent whether that stepchild or stepparent would be entitled to inherit the personal property of the decedent or not, may maintain an action against the wrongdoer, if the decedent might have maintained an action, had the decedent lived, against the wrongdoer for an injury done by the same act or omission. The action shall be commenced within three years after the injury causing the death of the decedent is discovered or reasonably should have been discovered by the decedent, by the personal representative or by a person for whose benefit the action may be brought under this section if that person is not the wrongdoer. In no case may an action be commenced later than the earliest of:

(a) Three years after the death of the decedent; or

(b) The longest of any other period for commencing an action under a statute of ultimate repose that applies to the act or omission causing the injury, including but not limited to the statutes of ultimate repose provided for in ORS 12.110 (4), 12.115, 12.135, 12.137 and 30.905.

(2) In an action under this section damages may be awarded in an amount which:

(a) Includes reasonable charges necessarily incurred for doctors’ services, hospital services, nursing services, other medical services, burial services and memorial services rendered for the decedent;

(b) Would justly, fairly and reasonably have compensated the decedent for disability, pain, suffering and loss of income during the period between injury to the decedent and the decedent’s death;

(c) Justly, fairly and reasonably compensates for pecuniary loss to the decedent’s estate;

(d) Justly, fairly and reasonably compensates the decedent’s spouse, children, stepchildren, stepparents and parents for pecuniary loss and for loss of the society, companionship and services of the decedent; and

(e) Separately stated in finding or verdict, the punitive damages, if any, which the decedent would have been entitled to recover from the wrongdoer if the decedent had lived.

(3) For the purposes of this section:

(a) Two persons shall be considered to have a stepchild-stepparent relationship if one of the biological parents of the stepchild, while the stepchild is a minor and in the custody of this first biological parent, marries the stepparent who is not the second biological parent or the adoptive parent of the stepchild;

(b) The stepchild-stepparent relationship shall remain in effect even though the stepchild is older than the age of majority or has been emancipated;

(c) The stepchild-stepparent relationship shall remain in effect even though one or both of the biological parents of the stepchild die; and

(d) The stepchild-stepparent relationship shall end upon the divorce of the biological parent and the stepparent. [Amended by 1953 c.600 §3; 1961 c.437 §1; 1967 c.544 §1; 1973 c.718 §2; 1991 c.471 §1; 1991 c.608 §1; 1995 c.618 §19]

30.030 Distribution of damages.

(1) Upon settlement of a claim, or recovery of judgment in an action, for damages for wrongful death, by the personal representative of a decedent under ORS 30.020, the amount of damages so accepted or recovered shall be distributed in the manner prescribed in this section.

(2) The personal representative shall make payment or reimbursement for costs, expenses and fees incurred in prosecution or enforcement of the claim, action or judgment.

(3) The personal representative shall make payment or reimbursement for reasonable charges necessarily incurred for doctors’ services, hospital services, nursing services or other medical services, burial services and memorial services rendered for the decedent.

(4) If under ORS 30.040 or 30.050 or by agreement of the beneficiaries a portion of the damages so accepted or recovered is apportioned to a beneficiary as recovery for loss described in ORS 30.020 (2)(d), the personal representative shall distribute that portion to the beneficiary.

(5) The remainder of damages accepted or recovered shall be distributed to the beneficiaries in the proportions prescribed under the laws of intestate succession of the state of decedent’s domicile, or as agreed by the beneficiaries, but no such damages shall be subject to payment of taxes or claims against the decedent’s estate. [Amended by 1973 c.718 §3; 2009 c.51 §1]

30.040 Apportionment among dependents upon settlement. Except when all beneficiaries otherwise agree, if settlement, with or without action, is effected and there is more than one beneficiary, the amount to be distributed to each beneficiary as recovery for loss described in ORS 30.020 (2)(d) shall be apportioned by the probate court to each beneficiary in accordance with the beneficiary’s loss. [Amended by 1973 c.718 §4]

30.050 Apportionment among dependents after judgment. Except when all beneficiaries otherwise agree, if the action described in ORS 30.020 is brought, and a judgment for the plaintiff is given, and there is more than one beneficiary, the amount to be distributed to each beneficiary as recovery for loss described in ORS 30.020 (2)(d) shall be apportioned by the trial court to each beneficiary in accordance with the beneficiary’s loss. [Amended by 1973 c.718 §5]

30.075 Procedure upon the death of an injured person.

(1) Causes of action arising out of injuries to a person, caused by the wrongful act or omission of another, shall not abate upon the death of the injured person, and the personal representatives of the decedent may maintain an action against the wrongdoer, if the decedent might have maintained an action, had the decedent lived, against the wrongdoer for an injury done by the same act or omission. The action shall be commenced within the limitations established in ORS 12.110 by the injured person and continued by the personal representatives under this section, or within three years by the personal representatives if not commenced prior to death.

(2) In any such action the court may award to the prevailing party, at trial and on appeal, a reasonable amount to be fixed by the court as attorney fees.

(3) Subsection (2) of this section does not apply to an action for damages arising out of injuries that result in death. If an action for wrongful death under ORS 30.020 is brought, recovery of damages for disability, pain, suffering and loss of income during the period between injury to the decedent and the resulting death of the decedent may only be recovered in the wrongful death action, and the provisions of subsection (2) of this section are not applicable to the recovery.

Article by Keith R. Shepherd

This article has been prepared by attorney Keith R. Shepherd as means to provide general information regarding personal injury and/or wrongful death claims. Each case should be evaluated individually on its merits by a competent attorney, and in no way should these articles be construed as specific legal advice or as the basis for the formation of a legal relationship with White & Shepherd, LLP. For a free consultation regarding your case, please email Keith R. Shepherd at Keith@lawfirmws.com or call 503-922-2028.

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