The Assignability of a Colorado Wrongful Death Suit

Posted by Jeremy Rosenthal | Dec 21, 2016 | 0 Comments

In incidents where someone is killed as a result of the actions of another party, the heir(s) of the decedent may file a civil suit for wrongful death. The purpose is to compensate those impacted by the loss of an individual. The claimant must prove that the death occurred as a result of the negligent or reckless actions of the defendant. Those with the right to bring a wrongful death action include the surviving spouse or children. If the decedent had no spouse or children, the parent(s) may bring suit. Assignability refers to the ability of an entitled party to transfer the death claim to another party, which the CO Appeals Court addressed in the following case.

Espinosa v. Perez in Colorado Court of Appeals

Connie Espinosa brought a wrongful death suit against a medical facility. Elbert Espinosa, her son, had died one day after leaving the facility and she claimed that they were negligent in prematurely discharging him. Shortly before the beginning of the trial, the defense surprisingly filed a motion for dismissal because the decedent had a son. The defense cited that Michael Miranda was his biological son and brought a family obituary, which indicated this as evidence.

The plaintiffs attempted to amend the claim to include the son, making them each 50% complainants. The case continued to worsen for the plaintiffs, as the court found that the mother did not have any right to initially bring the suit. Her complaint was dismissed, meaning that the son would need to bring a claim independently. Unfortunately, the statute of limitations had passed; therefore, the son was determined to be barred from filing suit.

Colorado wrongful death law states that a parent may only bring a suit if the decedent is “unmarried without descendants”. As it relates to the assignability in the case, the court ruled against it, citing three key points:

  • The right of recovery is for the individual(s) solely as stated in the statute.
  • Although the court does not discourage the amending of pleadings, adding new parties at this point in the timing of a case may encourage those attempting to circumvent the statute of limitations.
  • If the court allows assignability in such circumstances, it may be encouraging champerty. Champerty is an illegal arrangement where another otherwise uninterested party conspires to finance a case in exchange for a portion of the award if the suit is successful.

When the untimely death of a loved one occurs, coping with it can result in anger, uncertainty, and anxiety about the future. At The Law Office of Jeremy Rosenthal, they have many years of experience in successfully litigating wrongful death claims in Colorado. They will fight to recover damages for funeral costs, lost wages, and other compensation that you are entitled to. Make the call to the office today to initiate your road to recovery.

About the Author

Jeremy Rosenthal

Attorney Jeremy Rosenthal is dedicated to helping his clients seek just compensation for their injuries regardless of the lengths he has to go to or the distances he may have to travel in order to get it.

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