DEMAND FOR SETTLEMENT - WRONGFUL DEATH
COMMONWEALTH OF MASSACHUSETTS
[FIRM NAME]
Attorneys at Law
[Street Address]
[City, Massachusetts ZIP]
Telephone: [Phone]
Facsimile: [Fax]
Email: [Email]
Licensed in the Commonwealth of Massachusetts
DATE: [Date]
VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND FIRST-CLASS MAIL
[Claims Representative / Risk Management / Defendant]
[Insurance Company / Entity Name]
[Street Address]
[City, State ZIP]
RE: WRONGFUL DEATH CLAIM - SETTLEMENT DEMAND
Decedent: [Decedent Full Name]
Date of Death: [Date of Death]
Date of Incident: [Date of Incident, if different]
Claimant(s): [Personal Representative / Administrator]
Claim Number: [If assigned]
Policy Number: [If known]
Dear [Recipient Name]:
This firm represents [Personal Representative Name], in [his/her] capacity as [Personal Representative / Administrator] of the Estate of [Decedent Name], regarding the wrongful death of [Decedent Name], who died on [Date of Death] as a direct and proximate result of [describe cause - e.g., "a motor vehicle collision caused by your insured," "medical negligence," "a dangerous condition on your insured's property," etc.].
This letter constitutes our formal demand for settlement of all wrongful death and survival claims arising from this tragedy.
I. MASSACHUSETTS STATUTORY FRAMEWORK FOR WRONGFUL DEATH
A. Wrongful Death Claim
This wrongful death claim is brought pursuant to Massachusetts General Laws Chapter 229, Section 2, which provides:
"A person who (1) by his negligence causes the death of a person, or (2) by willful, wanton or reckless act causes the death of a person ... shall be liable in damages..."
Massachusetts wrongful death law is entirely statutory and must be strictly followed. Gaudette v. Webb, 362 Mass. 60 (1972).
B. Who May Bring the Action
Under Mass. Gen. Laws ch. 229, Section 2, the wrongful death action must be brought by the executor or administrator of the estate of the deceased person. Unlike some states, individual beneficiaries cannot bring the action directly.
Personal Representative:
[Name], [Executor/Administrator] of the Estate of [Decedent Name]
Appointed: [Date] by [Probate Court], Docket No. [Number]
Statutory Beneficiaries (Mass. Gen. Laws ch. 229, Section 1):
Recovery is distributed to and for the benefit of:
- Surviving Spouse
- Children (including adopted children)
- If no spouse or children: Parents
- If no spouse, children, or parents: Next of kin
Beneficiaries in this Matter:
- Surviving Spouse: [Spouse Name]
- Relationship: [Husband/Wife] of Decedent
- Married: [Date of Marriage]
-
[Years of marriage]
-
Surviving Children:
- [Child 1 Name], age [Age], [minor/adult]
- [Child 2 Name], age [Age], [minor/adult]
-
[Additional children]
-
Surviving Parents:
- [Parent 1 Name]
- [Parent 2 Name]
C. Survival Action
Massachusetts recognizes a survival action under Mass. Gen. Laws ch. 228, Section 1 and ch. 229, Section 6, which allows recovery for:
- Conscious suffering of the decedent prior to death
- Medical expenses incurred prior to death
- Lost wages from date of injury to death
The survival action is separate from the wrongful death claim and is brought by the personal representative on behalf of the estate.
D. Statute of Limitations
Under Mass. Gen. Laws ch. 260, Section 2A, the statute of limitations for wrongful death actions is three (3) years from the date of death.
Date of Death: [Date]
Limitations Period Expires: [Date + 3 years]
II. PRESERVATION OF EVIDENCE NOTICE
YOU ARE HEREBY DIRECTED TO PRESERVE ALL EVIDENCE relating to this claim, including but not limited to:
- All evidence relating to the incident causing death
- All documents, photographs, and recordings
- Electronic data, including EDR/black box data (vehicle cases)
- Surveillance footage
- Communications with your insured regarding the incident
- Complete claims file and investigation materials
- All applicable insurance policies
- Prior claims or incidents involving your insured
- [Add case-specific evidence items]
Under Massachusetts law, spoliation of evidence may result in sanctions and adverse inferences. Kippenhan v. Chaulk Servs., Inc., 428 Mass. 124 (1998).
III. STATEMENT OF FACTS
A. The Decedent - [Decedent Name]
[Decedent Name] was a [Age]-year-old [describe decedent - occupation, family role, community involvement]:
Personal Background:
- Date of Birth: [DOB]
- Age at Death: [Age]
- Residence: [City], Massachusetts
- Occupation: [Occupation/Employer]
- Annual Income: $[Amount]
- Education: [Education level]
Family:
- Spouse: [Name], married [years]
- Children: [Names and ages]
- [Other relevant family information]
Character and Contributions:
[Describe the decedent as a person - their role in the family, community involvement, personal qualities, etc.]
B. The Incident Causing Death
On [Date], at approximately [Time], [Decedent Name] was [describe activity]. At that time, [Defendant/Tortfeasor Name] [describe negligent conduct].
[Detailed description of incident and how it caused decedent's death]
C. The Death
[Decedent Name] [died at the scene / was transported to [Hospital] where [he/she] died / survived for [time period] before succumbing to injuries].
If Survival Period:
From the time of injury until death, a period of [time period], [Decedent Name]:
- Was conscious and aware of [his/her] impending death
- Suffered extreme physical pain from [injuries]
- Experienced pre-impact fright and terror
- [Describe other suffering during survival period]
IV. LIABILITY ANALYSIS
A. Negligence / Liability of Defendant
[Defendant Name] is liable for the wrongful death of [Decedent Name] under the following theories:
1. Negligence:
- Duty: [Defendant] owed a duty of [reasonable care] to [Decedent Name]
- Breach: [Defendant] breached this duty by [describe specific breaches]
- Causation: [Defendant's] breach directly and proximately caused [Decedent's] death
- Damages: [Decedent's] death has caused substantial damages to the statutory beneficiaries
2. Willful, Wanton, or Reckless Conduct (if applicable):
Under Mass. Gen. Laws ch. 229, Section 2, enhanced damages are available where death was caused by "willful, wanton or reckless" conduct. [Defendant's] conduct meets this standard because [describe conduct].
B. Massachusetts Comparative Negligence
Massachusetts follows modified comparative negligence under Mass. Gen. Laws ch. 231, Section 85. A plaintiff's recovery is reduced by their percentage of fault, but recovery is completely barred if the plaintiff is more than 50% at fault (the "51% bar rule").
[Decedent Name] bore no responsibility for [his/her] own death. [He/She] was:
- [Describe lawful, careful conduct]
- [Provide specific facts negating any comparative fault]
V. DAMAGES
A. Survival Action Damages (Estate Claim)
Under Mass. Gen. Laws ch. 229, Section 6, the survival action recovers damages suffered by [Decedent Name] between injury and death:
1. Conscious Pain and Suffering:
[Decedent Name] survived for [time period] following the injury. During this time, [he/she] experienced:
- Extreme physical pain from [injuries]
- Terror and awareness of impending death
- Pre-impact fright (compensable under Dziokonski v. Babineau, 375 Mass. 555 (1978))
- [Describe specific suffering]
Claimed Amount: $[Amount]
2. Pre-Death Medical Expenses:
| Provider | Service | Amount |
|---|---|---|
| [Ambulance] | Transport | $[Amount] |
| [Hospital] | Emergency/ICU Care | $[Amount] |
| [Other] | [Service] | $[Amount] |
| TOTAL PRE-DEATH MEDICAL | $[Total] |
3. Pre-Death Lost Earnings:
Lost wages from date of injury to date of death: $[Amount]
B. Wrongful Death Damages
Under Mass. Gen. Laws ch. 229, Section 2, damages in Massachusetts wrongful death cases are measured by the degree of culpability of the defendant's conduct, not solely by the losses of the beneficiaries. This is unique to Massachusetts.
1. Fair and Just Damages Based on Defendant's Culpability:
Massachusetts courts consider:
- The nature and degree of defendant's negligence or recklessness
- The circumstances of the death
- The losses suffered by the beneficiaries
- The character and conduct of the decedent
See Schultz v. Gale, 2014 Mass. App. Unpub. LEXIS 1168; Ciarletta v. Kinchla, 2013 Mass. Super. LEXIS 38.
2. Loss of Reasonably Expected Net Income:
| Factor | Value |
|---|---|
| Decedent's Annual Income | $[Amount] |
| Decedent's Age at Death | [Age] |
| Decedent's Work-Life Expectancy | [Years] |
| Personal Consumption Deduction | [%] |
| Present Value Discount Rate | [%] |
| TOTAL LOST INCOME | $[Amount] |
3. Loss of Services:
Value of household services and contributions provided by the decedent:
- Estimated annual value: $[Amount]
- Present value of future lost services: $[Amount]
4. Loss of Companionship, Comfort, and Guidance:
| Beneficiary | Relationship | Description of Loss |
|---|---|---|
| [Name] | Spouse | [Describe marital relationship and loss] |
| [Name] | Child | [Describe parent-child relationship and loss] |
| [Name] | Child | [Describe parent-child relationship and loss] |
5. Funeral and Burial Expenses:
| Expense | Amount |
|---|---|
| Funeral Home Services | $[Amount] |
| Casket/Urn | $[Amount] |
| Cemetery/Burial Plot | $[Amount] |
| Headstone/Memorial | $[Amount] |
| Memorial Service | $[Amount] |
| TOTAL FUNERAL EXPENSES | $[Total] |
C. Punitive Damages / Minimum Damages
Willful, Wanton, or Reckless Conduct:
Under Mass. Gen. Laws ch. 229, Section 2, if death was caused by willful, wanton, or reckless conduct, the defendant is liable for damages of not less than $5,000.
[If applicable:] [Defendant's] conduct was willful, wanton, or reckless because [describe conduct]. This entitles the estate to enhanced damages based on the degree of culpability.
Note: Unlike many states, Massachusetts does not have a separate "punitive damages" category in wrongful death cases. Instead, the "culpability" standard incorporates punitive considerations into the overall damage award.
D. No Damage Caps
Massachusetts does not cap damages in wrongful death cases (except for medical malpractice cases, which have a $500,000 cap on non-economic damages under Mass. Gen. Laws ch. 231, Section 60H).
E. Summary of Damages
Survival Action (Estate Claim):
| Category | Amount |
|---|---|
| Conscious Pain and Suffering | $[Amount] |
| Pre-Death Medical Expenses | $[Amount] |
| Pre-Death Lost Earnings | $[Amount] |
| TOTAL SURVIVAL DAMAGES | $[Subtotal] |
Wrongful Death Action:
| Category | Amount |
|---|---|
| Fair Damages Based on Culpability | $[Amount] |
| Lost Net Income | $[Amount] |
| Loss of Services | $[Amount] |
| Loss of Companionship/Comfort/Guidance | $[Amount] |
| Funeral and Burial Expenses | $[Amount] |
| TOTAL WRONGFUL DEATH DAMAGES | $[Subtotal] |
TOTAL ALL DAMAGES: $[Grand Total]
VI. SETTLEMENT DEMAND
A. Demand Amount
Based upon the clear liability of [Defendant], the degree of culpability of [Defendant's] conduct, and the substantial damages suffered by the beneficiaries, we hereby demand:
$[DEMAND AMOUNT]
[OR - Policy Limits Demand:]
TENDER OF ALL AVAILABLE POLICY LIMITS, INCLUDING:
- Primary liability policy: $[Amount]
- Umbrella/Excess policy: $[Amount]
- Any additional coverage: $[Amount]
- TOTAL LIMITS DEMANDED: $[Amount]
B. Distribution to Beneficiaries
Under Mass. Gen. Laws ch. 229, Section 1, any recovery shall be distributed:
- To the surviving spouse and children if any
- If no spouse or children, to the parents
- If no spouse, children, or parents, to the next of kin
The Probate Court will supervise distribution, with particular attention to minor beneficiaries.
C. Time for Response
This demand will remain open for thirty (30) days from the date of this letter, through and including [Expiration Date].
Given that damages clearly exceed policy limits, failure to tender limits within this period may constitute bad faith, exposing your insured to personal liability for any excess judgment.
VII. EXCESS LIABILITY / BAD FAITH NOTICE
Please be advised that our client's damages substantially exceed the available policy limits. Under Massachusetts law:
-
You have a duty to give equal consideration to your insured's interests in settlement decisions;
-
Failure to accept a reasonable settlement demand within policy limits may expose your company to liability under Mass. Gen. Laws ch. 93A and ch. 176D (unfair settlement practices);
-
We demand that you immediately advise your insured of the excess exposure and of this demand.
Massachusetts recognizes a private right of action against insurers for unfair claim settlement practices. Clegg v. Butler, 424 Mass. 413 (1997).
VIII. DOCUMENTATION ENCLOSED
- Death certificate
- Letters of administration / Letters testamentary
- Medical records and bills (pre-death treatment)
- Autopsy report (if applicable)
- Funeral and burial expense receipts
- Decedent's tax returns (3 years)
- Employment records and income verification
- Photographs of decedent and family
- Marriage certificate (if spouse claimant)
- Birth certificates (if child claimants)
- Police/incident report
- Witness statements
- [Other case-specific documentation]
IX. CONCLUSION
The death of [Decedent Name] was a preventable tragedy caused by [Defendant's] [negligence / willful, wanton, or reckless conduct]. [He/She] was taken from [his/her] family, leaving a spouse and [number] children without [his/her] love, support, guidance, and companionship.
The degree of [Defendant's] culpability in causing this death warrants substantial damages under Massachusetts law. The liability in this case is clear, and the damages are well-documented.
If this matter cannot be resolved, we are prepared to file suit immediately in the [Superior Court / District Court] of [County] County, Massachusetts, and prosecute this case vigorously through trial.
Please contact me at your earliest convenience to discuss resolution.
Respectfully submitted,
[FIRM NAME]
By: _________________________________
[Attorney Name]
Massachusetts BBO No. [Number]
Attorney for [Personal Representative Name], Administrator of the Estate of [Decedent Name]
ENCLOSURES: [List]
cc: [Personal Representative]
[Beneficiaries]
[Guardian ad Litem, if applicable]
File
MASSACHUSETTS-SPECIFIC PRACTICE NOTES
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Action by Administrator Only: Unlike many states, only the personal representative (executor/administrator) can bring a wrongful death action, not individual beneficiaries.
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Culpability-Based Damages: Massachusetts uniquely measures wrongful death damages based on the "degree of culpability" of the defendant, not just the losses of beneficiaries. This allows for enhanced damages in egregious cases.
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Modified Comparative Negligence (51% Bar): Recovery barred if decedent more than 50% at fault.
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No Damage Caps: Massachusetts does not cap wrongful death damages (except medical malpractice non-economic damages capped at $500,000).
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Chapter 93A Claims: Massachusetts unfair trade practices act may apply to insurer bad faith, providing for double or treble damages and attorney fees.
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Pre-Impact Fright: Compensable in survival action. Dziokonski v. Babineau, 375 Mass. 555 (1978).
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Presentment Requirement: For claims against municipalities, must present claim within 2 years. Mass. Gen. Laws ch. 258, Section 4.
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Minimum Recovery: $5,000 minimum if death caused by willful, wanton, or reckless conduct.
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Venue: County where cause of action arose or where defendant resides.
This template must be reviewed and customized by a Massachusetts-licensed attorney. Wrongful death claims have specific statutory requirements, and the culpability-based damages standard requires careful case presentation.