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Can I Sue for a Foreign Wrongful Death?

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By Ephrat Livni, Esq. on October 15, 2015 6:57 AM

If a loved one dies overseas, you may be able to sue for wrongful death in the United States. The overseas element will, however, add a level of complexity to an already complicated litigation.

You can argue that an American court has jurisdiction over a foreign defendant. Foreigners are subject to suit in the U.S. based on ties to this country, and sometimes suits are even filed here by foreign plaintiffs against foreign defendants based on incidents that occurred abroad. Still, establishing jurisdiction is procedurally intense and not at all obvious. You will need a lawyer.

Procedural Intensity Demands Counsel

In some senses, initiating a wrongful death claim is the same whether the death occurred at home or abroad. The intensely complicated procedural element to establishing a claim over a foreign entity will be a challenge to many attorneys, however.

Your best bet is to find someone who is extremely familiar with civil procedure and has a strong sense of how to establish jurisdiction over foreign entities. This is not the kind of case you can handle independently or with the help of an inexperienced lawyer.

Elements of a Wrongful Death Claim

What you can do independently, however, is get a basic sense of the elements of wrongful death. The better you understand the claim, the more efficiently you can use your consultation time with counsel.

The first thing to establish is who can sue. It is not something that just anyone can do. A suit for wrongful death may only be brought by the personal representative of the decedent's estate.

In order to prove the claim, the plaintiff must prove the following:

  • There was a death.
  • The death was caused by the negligence of another or with intent to cause harm.
  • Surviving family members suffered monetary injury as a result of the death.
  • A personal representative for the decedent's estate has been appointed.

The estate's personal representative may also sue for personal injury to the decedent, conscious pain and suffering, and expenses incurred prior to death. Damages awarded based on these claims will belong to the estate and will pass to parties as directed by the decedent's will.

The Jurisdictional Hurdle

Before your counsel can argue the merits of the case, jurisdiction does have to be established. Lack of it will likely be the defendant's argument of first resort. A court's authority can only extend so far and orders from an authority with no jurisdiction over a party are essentially meaningless.

That said, do not be deterred by the added complications caused by the death having taken place abroad. It may turn out that a death on foreign soil is the responsibility of an American company, depending on how and where exactly your loved one died (say in an American hotel or tour bus). An experienced torts attorney will understand how to handle your claim.

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