Buried my nephew yesterday

[starting over]

What is the name of your state (only U.S. law)? Florida

This is long, I apologize for the emotion but I will try to stick to the history and the facts.

My 18 yo nephew was involved in a single car accident last week, both he & his friend were ejected from the vehicle (neither were wearing seatbelts) It is still undetermined at this time, but it appears that his friend was driving (it was his truck) and excessive speed seems to be a factor. The other child is still in a coma.

My nephew was raised by his mother, she had sole legal & physical custody since 2003. Father only had visitation at discrection of mother, he was an alcoholic amongst other things. Dad moved about 1000 miles away, but was/is wanted due to flagrant non-child support in excess of $50,000. It had been a year since he had seen the child (at his sisters graduation, which she paid for the ticket for Dad to come) and no one can really remember when he saw or spoke to the child before that.

Dad & all of his family came for funeral (approx 45 of them) Showed up at the funeral home to make arrangements, told Mom to she'd better be figuring out fast how to pay for it, clearly stated he would not help. But, had the nerve to criticize her for requesting an open casket. Her Dad paid for all the funeral expenses on his Credit Card.

Well, 2 hours after the arrangements were made Dad requested Mom meet him and his sister at a lawyers office. Dad & his sister had already made an appointment to request to be made PR & to start suit. I strongly discouraged Mom from attending. Dad told Mom that Lawyer said it must be a joint venture since they were the parents of the child. She told him that she wasn't up to it, but in the meantime we had scheduled an appointment with the attorney for later in the afternoon.

Well, Lawyer is going to file to have Mom appointed PR this week. However, Dad is calling stating that Mom is a #%@$@ for going to the attorney without him. Apparantly, when they had their meeting with the attorney, they left out alot of key details. Dad is stating that because he is "Dad", he is entitled to 50% of any lawsuits/settlements. Lawyer stated that even though not likely, anyone can sue for anything.

Does anyone have any advice or caselaw I can research to find the likelihood that Dad can financially benefit strictly because of biology? It is very obvious that this is only about any potential monies that might end up in the Estate.

I know this is complicated, but Im just trying to start researching to help our family through a difficult time and appears to be getting more difficult.What is the name of your state (only U.S. law)?

 

[ecmst12]

This is what mom is paying the lawyer for. You should not be concerned with ANY of this. If the lawyer doesn't make her feel absolutely secure that he/she will be able to fight to keep dad out of any lawsuit and away from any proceeds, then mom should keep looking until she finds one she can feel confident in.

 

[Antigone*]

What is the name of your state (only U.S. law)? Florida

This is long, I apologize for the emotion but I will try to stick to the history and the facts.

My 18 yo nephew was involved in a single car accident last week, both he & his friend were ejected from the vehicle (neither were wearing seatbelts) It is still undetermined at this time, but it appears that his friend was driving (it was his truck) and excessive speed seems to be a factor. The other child is still in a coma.

My nephew was raised by his mother, she had sole legal & physical custody since 2003. Father only had visitation at discrection of mother, he was an alcoholic amongst other things. Dad moved about 1000 miles away, but was/is wanted due to flagrant non-child support in excess of $50,000. It had been a year since he had seen the child (at his sisters graduation, which she paid for the ticket for Dad to come) and no one can really remember when he saw or spoke to the child before that.

Dad & all of his family came for funeral (approx 45 of them) Showed up at the funeral home to make arrangements, told Mom to she'd better be figuring out fast how to pay for it, clearly stated he would not help. But, had the nerve to criticize her for requesting an open casket. Her Dad paid for all the funeral expenses on his Credit Card.

Well, 2 hours after the arrangements were made Dad requested Mom meet him and his sister at a lawyers office. Dad & his sister had already made an appointment to request to be made PR & to start suit. I strongly discouraged Mom from attending. Dad told Mom that Lawyer said it must be a joint venture since they were the parents of the child. She told him that she wasn't up to it, but in the meantime we had scheduled an appointment with the attorney for later in the afternoon.

Well, Lawyer is going to file to have Mom appointed PR this week. However, Dad is calling stating that Mom is a #%@$@ for going to the attorney without him. Apparantly, when they had their meeting with the attorney, they left out alot of key details. Dad is stating that because he is "Dad", he is entitled to 50% of any lawsuits/settlements. Lawyer stated that even though not likely, anyone can sue for anything.

Does anyone have any advice or caselaw I can research to find the likelihood that Dad can financially benefit strictly because of biology? It is very obvious that this is only about any potential monies that might end up in the Estate.

I know this is complicated, but Im just trying to start researching to help our family through a difficult time and appears to be getting more difficult.What is the name of your state (only U.S. law)?

I have no legal advice to offer you, I only want to say that I am so sorry for the loss and tragedy your family is experiencing. Your story hits extremely close to home for me. As a mother I will only say this. No amount of money will ever bring the child back. Help mom get through her pain. Help her to avoid dealing with dad. My prayers are with you, your family and your nephew's mother.

 

[starting over]

This is what mom is paying the lawyer for. You should not be concerned with ANY of this. If the lawyer doesn't make her feel absolutely secure that he/she will be able to fight to keep dad out of any lawsuit and away from any proceeds, then mom should keep looking until she finds one she can feel confident in.

The lawyer is confident (99%) that Mom will be appointed as PR, and once that is done Mom will be in control to sue or not sue. The lawyer will file this week for that to happen. The lawyer does appear to know what he is doing as far as creating an estate & and going after any potential monetary claims that they may be entitled. This part, we are not concerned about.

However, when it comes to the disbursement of the estate he will not be her attorney for that portion. He has recommended an attorney for this portion, however, since this is all still very, very fresh no one has spoken with Attorney "B" at this stage. I agree that Mom needs to be confident in her attorney, and Stage 1 of this process (creating the estate) is not where our focus is, we all believe this Attorney does know what he is doing. Mom is not looking to financially benefit from her childs death, but irregardless - our opinion is that Dad DEFINATELY should not.

The lawyer mentioned when Stage 2 occurs (disbursement) there will be a hearing. Mom will need to provide Family photos, Mother's Day cards, proof of medical insurance premiums she paid (Dad was c/o), proof of child support arrearages, things that show her relationship with the child throughout his life.

According to the lawyer, Dad will be expected to show the same types of items. However, due to the non-involvement, he won't be able to produce any of the above items or proof of visitation (plane tickets) or phone records.

I know "I" shouldn't be concerned with any of this, but Mom and Grandparents have requested that I attend the meetings with the attorneys. This was their request, not mine.

Since none of us have ever been through anything of this nature, I wanted to make sure that they had a general idea what to expect (based on outside research) so when they are dealing with the attornies, they already have a "general" idea of what is going on so not to be surprised.

 

[ecmst12]

Any proceeds from a lawsuit or even just a claim to the friend's insurance will NOT be part of your nephew's estate, it will belong solely to the claimant and won't be distributed through a will or probate. Did the nephew have any assets that will need to be distributed through the courts?

Mom will need a separate lawyer to deal with any claim against the driver's insurance (and I thought that's what she was seeing the lawyer for in the first place). It is quite likely that they will be willing to pay out the full policy limit without much of an argument, but she will need a lawyer to keep dad OUT of the claim process. Obviously he suffered no financial loss from the accident and has no basis to piggyback onto her legitimate claim.

 

[starting over]

Any proceeds from a lawsuit or even just a claim to the friend's insurance will NOT be part of your nephew's estate, it will belong solely to the claimant and won't be distributed through a will or probate. Did the nephew have any assets that will need to be distributed through the courts?

Mom will need a separate lawyer to deal with any claim against the driver's insurance (and I thought that's what she was seeing the lawyer for in the first place). It is quite likely that they will be willing to pay out the full policy limit without much of an argument, but she will need a lawyer to keep dad OUT of the claim process. Obviously he suffered no financial loss from the accident and has no basis to piggyback onto her legitimate claim.

Thank you, this is what we are trying to understand. My nephew did not have any prior assets that would have needed to be distributed.

Based on the meeting with the attorney, the claim for immediate reimbursement for funeral benefits will be made to Mom's insurance company (since child lived with Mom, so he said) and this will be a reimbursement outside of the estate. This is to reimburse Grandpa for his out of pocket expenses for the funeral.

However, I don't know if this is a Florida thing or not, but the lawyer stated that monies requested from the friend's insurance company WILL be used to "create" the estate which will then be subject to distribution. The lawyer stated that he will contact the friends insurance company regarding immediate payments of benefits, they will have 30 days to pay up to the policy limits. If they do not respond, on the 31st day that policy limits no longer apply and he will file suit. He seemed pretty confident that the insurance company will not wait to settle the claim. I know he is also checking to see if the other child's parents are titled on the truck since he lived in the parents home according to his DL.

The lawyer was going to go Friday to attempt to purchase the vehicle, it was a fairly new model, he stated that there may or may not be a product liability issue (there was extensive crushing of the vehicle) I think he is just covering all aspects. His investigator was also present in the meeting & it seemed that he was going to have a very large "to do" list on Friday.

I know that there is still pending toxicology issues on the driver, that is another thing that may be an issue.

 

[ecmst12]

No vehicle is able to protect the occupants from a high speed crash when they are not wearing the proper restraints. The crushing of the vehicle is fairly irrelevent since the occupants were ejected.

The way he explained it sounds kind of strange to me, but it's my understanding that both parents are next of kin and have equal rights to present a wrongful death claim. The distribution of the claim would not really be part of the estate, but might be handled similarly, since there are seemingly equal claims. And that is where the proof of support and time spent with the child etc might be examined.

 

[starting over]

No vehicle is able to protect the occupants from a high speed crash when they are not wearing the proper restraints. The crushing of the vehicle is fairly irrelevent since the occupants were ejected.

The way he explained it sounds kind of strange to me, but it's my understanding that both parents are next of kin and have equal rights to present a wrongful death claim. The distribution of the claim would not really be part of the estate, but might be handled similarly, since there are seemingly equal claims. And that is where the proof of support and time spent with the child etc might be examined.

I agree with what you said about the high speed crash and not wearing seatbelts. This was an irresponsible action on the part of my nephew, and had he made different choices the outcome may have been different. The speed of the vehicle was also a major factor to this & I personally don't see anything holding up very well after rolling over several times. He said something about proving that "even if" he had been properly restrained, the crushing still would have caused death. I don't agree with it, just repeating what he stated.

As far as the distribution of a wrongful death claim, I am leaning to believe that it is handled in a similar fashion. That may have been why the Lawyer explained it that way, to attempt to simplify it. That is probably why he told Mom to start gathering "documentation", even though it wouldn't be needed until after Stage 1.

ECMST12, I appreciate you taking the time to try to clarify this for us. Had it not been for Dad contacting Mom re: a lawyer appt., we wouldn't have. Im sure Mom would have eventually been contacted by someone (Ambulance chaser for lack of a better term) Mom felt that she needed to take a proactive approach to keep Dad from getting anything by "default"

Our family is old school, we were not raised to look for someone to "blame" or to sue. In our opinion, although we are saddened by losing him, he made choices as well. But, I guess this is what our Society has come to.

If you have any other ideas of websites, search criteria, etc that would make some good fireside reading for me, I would appreciate it.

Thanks again.

 

[starting over]

Short Update

Mom was contacted by Attorney this morning. We knew that Dad had signed a retaining agreement with the Attorney last week, but that once Mom is appointed PR he would nullify the agreement (stated at that time, he would be Moms attorney & conflict of interest would apply) We were very clear that if he chose to represent Dad's interest in any way, Mom would seek other counsel.

Apparantly prior to the funeral Saturday, before Mom arrived, there must have been some type of altercation between Dad's family & the funeral director. We knew of a situation, however the funeral director told us he addressed it prior to us getting there. Details weren't provided, weren't really desired. Basically, Dad's family was told that they could either participate or be escorted out. Funeral Director had local police on standby during the service (we weren't aware of all of this until this morning, just as well)

This morning the Funeral Director contacted Mom's attorney & told him of the details of what was said and/or done by Dad & his family. Lawyer contacted Mom & stated that based on what transpired, he was immediately issuing a letter to Dad stating that whether or no Mom chose to retain him, he would under no circumstances represent Dad's potential interest in this case. Again, we are not sure of details, but Lawyer is......that is what matters. We really don't need details to add fuel to an already raging fire.

Mom is doing pretty well, given the circumstances.

 

[xylene]

No vehicle is able to protect the occupants from a high speed crash when they are not wearing the proper restraints. The crushing of the vehicle is fairly irrelevent since the occupants were ejected.

I have to disagree with some inferences of this statement

1. Restraints guarantee no ejection - not true.

2. Ejection means that the ejected party is culpable for their own injuries and crash severity is irrelevant - not true.

 

[ecmst12]

I said no such thing, nothing resembling EITHER statement.

The fact that the vehicle was crushed (from rolling over multiple times) did not contribute to THESE people's injuries since they were ejected.

The lack of seat belts contributed to the ejection. Had they been wearing seat belts, they might have still been ejected (but less likely) and they might still have received equivalent severity of injuries. However, passenger not wearing seat belt will NOT legally be considered contributory negligence. It almost never is.

 

[starting over]

I said no such thing, nothing resembling EITHER statement.

The fact that the vehicle was crushed (from rolling over multiple times) did not contribute to THESE people's injuries since they were ejected.

The lack of seat belts contributed to the ejection. Had they been wearing seat belts, they might have still been ejected (but less likely) and they might still have received equivalent severity of injuries. However, passenger not wearing seat belt will NOT legally be considered contributory negligence. It almost never is.

Can you elaborate on this?

 

[ecmst12]

Sometimes an insurance company will try to claim that a passenger is partially responsible for his own injuries just because he wasn't wearing a seat belt. This typically doesn't fly in court. The passenger's lack of seat belt did not contribute to the actual cause of the accident, did not cause the driver's bad driving, and so (almost always) can't be considered contributing to the accident.

 

[starting over]

Once again, Thank you

 

[starting over]

Need some more guidance

I was just notified by Mom that she was contacted by the Highway Patrol today. They are coming tomorrow morning re: a homicide investigation. Mom attempted to contact her attorney, but was unable to. She is concerned that maybe she shouldn't speak with the officers tomorrow.

Mom has surprised me with her reaction with all of this, although I feel that she is correct in the way she feels. She does not want this other child prosecuted in her son's death. Her view is, one child is already lost.....there is nothing anyone can do to change that. It is senseless for another child to have his life ruined. If this child survives, he will have to deal with the guilt in what has happened. Jail or any other punishments are not necessary. Prior to the accident, the other child was enlisting in the Military.

With regard to the insurance I posted about before, according to the attorney, there was no PIP coverage on his policy and therefore no monies will be available. Just as well, at least she won't have to fight with Dad.

Does anyone have any advice for Mom? Thanks in advance.