Caps on non-economic damages make it impossible to receive true fair value in death claims in Maryland (and in most states). Accordingly, personal injury lawyers need to turn over every possible stone to maximize the economic damages in wrongful death cases. Often overlooked, even by the best wrongful death lawyers – at least until they get the case to an economist – is the decedent’s employer funded benefits.
The problem is, in many fatal cases an economist is not used either because the plaintiffs’ lawyer thinks he does not need one, or because the case reaches a settlement long before an economist is engaged. As a result, employee funded benefits are not always included in the calculus.
Fifteen years ago, if you left out these benefits, the overall value of your case suffered a little. In 2012, with health insurance and other employee benefits skyrocketing, if you don’t include these in your damages in a wrongful death case, you are leaving as much as 25% of the value of the claim on the table.
Wrongful death beneficiaries should be able to collect the present value of all employer funded pension benefits and health/dental/eye care insurance which are lost to the family as the result of the death. How do you prove these damages? You can’t exactly bring in an expert in each area to provide testimony on the market value of these benefits. Courts are generally going to allow an economist to estimate the cost of these benefits. I think most judges would also allow the employer to estimate these costs.
Clearly, you can’t get every employee benefit included as damages. You cannot collect on the decedents’ lost disability insurance while making a claim for lost earnings. And you can’t include employer paid vacations and holidays. But the majority of these lost benefits should be included in a fatality case from demand package to submission to the jury.