DEMAND FOR SETTLEMENT - WRONGFUL DEATH

STATE OF NEW JERSEY

[FIRM NAME]
Attorneys at Law
[Street Address]
[City, New Jersey ZIP]
Telephone: [Phone]
Facsimile: [Fax]
Email: [Email]
Licensed in the State of New Jersey

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 AND SURVIVAL ACTION - SETTLEMENT DEMAND
Decedent: [Decedent Full Name]
Date of Death: [Date of Death]
Date of Incident: [Date of Incident, if different]
Administrator Ad Prosequendum: [Administrator Name]
Claim Number: [If assigned]
Policy Number: [If known]

Dear [Recipient Name]:

This firm represents [Administrator Name], as Administrator Ad Prosequendum of the Estate of [Decedent Name], deceased, regarding the wrongful death and survival action claims arising from the 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 the wrongful death and survival action claims arising from this tragedy.

I. NEW JERSEY WRONGFUL DEATH AND SURVIVAL ACTION FRAMEWORK

A. Wrongful Death Act - N.J.S.A. Section 2A:31-1 et seq.

This wrongful death claim is brought pursuant to the New Jersey Wrongful Death Act, N.J.S.A. Section 2A:31-1, which provides:

"When the death of a person is caused by a wrongful act, neglect or default, such as would, if death had not ensued, have entitled the person injured to maintain an action for damages resulting from the injury, the person who would have been liable in damages for the injury if death had not ensued shall be liable in an action for damages..."

See Smith v. Whitaker, 160 N.J. 221, 734 A.2d 243 (1999); Green v. Bittner, 85 N.J. 1, 424 A.2d 210 (1980).

B. Survival Act - N.J.S.A. Section 2A:15-3

In addition to the wrongful death claim, a survival action is brought pursuant to N.J.S.A. Section 2A:15-3, which provides that personal injury actions survive the death of the injured person. The survival action is distinct from the wrongful death action and allows recovery of damages the decedent could have recovered if he or she had survived.

IMPORTANT DISTINCTION:

See Smith v. Whitaker, 160 N.J. 221, 734 A.2d 243 (1999).

C. Who May Bring the Action

Under N.J.S.A. Section 2A:31-2, the wrongful death action must be brought by an Administrator Ad Prosequendum - a special administrator appointed specifically for the purpose of the wrongful death lawsuit.

Administrator Ad Prosequendum:
[Administrator Name]
Appointed: [Date] by the [Surrogate's Court of [County] County, New Jersey]
Letters of Administration Ad Prosequendum Issued: [Date]

D. Beneficiaries

Under N.J.S.A. Section 2A:31-4, the recovery is for the benefit of persons entitled to take the decedent's intestate personal property:

E. Statute of Limitations

Under N.J.S.A. Section 2A:31-3, the wrongful death action must be commenced within two (2) years from the date of death.

• Date of Death: [Date of Death]
• Limitations Period Expires: [Expiration Date]

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]

Spoliation of evidence will result in sanctions and adverse inferences under New Jersey law. Rosenblit v. Zimmerman, 166 N.J. 391, 766 A.2d 749 (2001).

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/Town], New Jersey
- Occupation: [Occupation/Employer]
- Annual Income: $[Amount]
- Education: [Education level]

Family:
- Spouse: [Name], married [years]
- Children: [Names and ages]
- Parents: [Names, if surviving]
- [Other relevant family information]

Character and Standing in the Community:
[Describe the decedent's character, community involvement, and relationships]

B. The Incident Causing Death

On [Date], at approximately [Time], [describe the incident with specificity]:

[Detailed factual description of the incident, the defendant's conduct, and how it caused the 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] injuries
- Suffered extreme physical pain from [injuries]
- [Describe other suffering during survival period]

This conscious pain and suffering is compensable under the Survival Act.

IV. LIABILITY ANALYSIS

A. Negligence / Liability of Defendant

[Defendant Name] is liable for the wrongful death of [Decedent Name]. Under New Jersey law, a wrongful death action lies when death is caused by a wrongful act, neglect, or default. Smith v. Whitaker, 160 N.J. 221, 734 A.2d 243 (1999).

Elements of Negligence:

1. Duty: [Defendant] owed a duty of [reasonable care / safe premises / proper medical care / etc.] to [Decedent Name]

2. Breach: [Defendant] breached this duty by:
   - [Describe specific breaches with particularity]
   - [Additional breaches]

3. Causation: [Defendant's] breach was the actual and proximate cause of [Decedent's] death

4. Damages: [Decedent Name]'s death resulted in damages recoverable under New Jersey law

B. Negligence Per Se (If Applicable)

[Defendant] violated [New Jersey statute or regulation], which was designed to protect [class of persons] from [type of harm]. Under New Jersey law, violation of a statute designed to protect a class of persons constitutes evidence of negligence. Eaton v. Eaton, 119 N.J. 628, 575 A.2d 858 (1990).

C. New Jersey's Modified Comparative Fault Rule

New Jersey follows modified comparative fault under N.J.S.A. Section 2A:15-5.1. The plaintiff's damages are reduced by the percentage of negligence attributable to the plaintiff, and recovery is barred if the plaintiff's negligence exceeds the combined negligence of all defendants.

[Decedent Name] Was Not Negligent:

[Decedent Name] bore absolutely no fault for [his/her] own death. [He/She] was:
- [Describe lawful, careful conduct]
- [Additional evidence of due care]
- [Explain why decedent had no opportunity to avoid the harm]

Any assertion of comparative negligence on the part of [Decedent Name] would be frivolous and unsupported by the facts.

V. DAMAGES

A. WRONGFUL DEATH DAMAGES (N.J.S.A. Section 2A:31-5)

Under the New Jersey Wrongful Death Act, damages are limited to pecuniary losses suffered by the statutory beneficiaries. Pecuniary losses include:

1. Loss of financial support (contributions decedent would have made)
2. Loss of services (household, childcare, etc.)
3. Loss of parental guidance and training (for minor children)
4. Loss of companionship (recognized as having pecuniary value)
5. Funeral expenses

Note: Grief, sorrow, and emotional distress are NOT recoverable under the Wrongful Death Act (but pre-death pain and suffering IS recoverable under the Survival Act).

See Green v. Bittner, 85 N.J. 1, 424 A.2d 210 (1980).

B. SURVIVAL ACTION DAMAGES (N.J.S.A. Section 2A:15-3)

Under the Survival Act, the estate may recover damages the decedent could have recovered, including:

1. Pre-death pain and suffering (physical and mental)
2. Pre-death medical expenses
3. Pre-death lost wages
4. Punitive damages (in appropriate cases)

C. ECONOMIC DAMAGES - WRONGFUL DEATH

1. Loss of Financial Support:

[Decedent Name] was [Age] years old at death with a work-life expectancy of [Years] years.

Based on expert economic analysis

2. Loss of Services:

3. Loss of Parental Guidance (Minor Children):

New Jersey recognizes the pecuniary value of parental guidance for minor children. Green v. Bittner, 85 N.J. 1, 424 A.2d 210 (1980).

4. Funeral and Burial Expenses:

D. NON-ECONOMIC DAMAGES - SURVIVAL ACTION

1. Pre-Death Pain and Suffering:

[Decedent Name] survived for [time period] following the initial injury. During this time, [he/she]:
- Experienced severe physical pain from [describe injuries]
- Suffered mental anguish and emotional distress
- [Was aware of impending death / feared for his/her life]
- [Other suffering]

Claimed Pre-Death Pain and Suffering: $[Amount]

2. Pre-Death Medical Expenses:

3. Pre-Death Lost Wages:

E. Summary of Damages

Wrongful Death Damages (Pecuniary):

Survival Action Damages:

TOTAL ALL DAMAGES: $[Grand Total]

VI. SETTLEMENT DEMAND

A. Demand Amount

Based upon the clear liability of [Defendant], the substantial pecuniary losses, and the significant survival action damages, 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 of Recovery

Under New Jersey law:
- Wrongful death damages are distributed according to the intestate succession statutes
- Survival action damages are assets of the estate

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 the clear liability and substantial damages in this case, failure to respond appropriately may result in the immediate filing of a wrongful death and survival action complaint in the Superior Court of New Jersey, [County] County.

VII. BAD FAITH / EXCESS LIABILITY NOTICE

Please be advised that our client's damages may substantially exceed the available policy limits. Under New Jersey law:

1. An insurer has a duty to act in good faith and deal fairly with insureds. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 323 A.2d 495 (1974).

2. New Jersey's Unfair Claims Settlement Practices Act, N.J.S.A. Section 17:29B-4, prohibits unfair settlement practices.

3. Failure to accept a reasonable settlement demand within policy limits may expose the insurer to bad faith liability.

4. We demand that you immediately advise your insured of this demand and of any potential excess exposure.

VIII. DOCUMENTATION ENCLOSED

• Death certificate
• Letters of Administration Ad Prosequendum
• Medical records and bills (pre-death treatment)
• Autopsy report (if applicable)
• Funeral and burial expense receipts
• Police/incident report
• Witness statements
• Photographs
• Proof of earnings/income documentation
• [Other case-specific documentation]

IX. CONCLUSION

The wrongful death of [Decedent Name] was caused entirely by [Defendant's] [negligence / wrongful conduct]. [Decedent Name] bore no fault whatsoever for [his/her] own death.

[Decedent Name] was a [describe decedent's value and the loss to family and community]. [His/Her] death has devastated [his/her] family and deprived them of [his/her] love, support, and guidance.

We urge you to resolve this matter fairly and promptly. If this matter cannot be resolved, we are prepared to file suit immediately in the Superior Court of New Jersey.

Please contact me at your earliest convenience to discuss resolution.

Respectfully submitted,

[FIRM NAME]

By: _________________________________
[Attorney Name]
New Jersey Bar ID No. [Number]
Attorney for the Estate of [Decedent Name]

ENCLOSURES: [List]

cc: [Administrator Ad Prosequendum]
[File]

NEW JERSEY-SPECIFIC PRACTICE NOTES

Critical New Jersey Wrongful Death Considerations:

1. ADMINISTRATOR AD PROSEQUENDUM REQUIRED: New Jersey requires appointment of a special administrator (Administrator Ad Prosequendum) to bring the wrongful death lawsuit. This is obtained from the Surrogate's Court.

2. SEPARATE WRONGFUL DEATH AND SURVIVAL ACTIONS: These are distinct causes of action with different damage measures. Wrongful death compensates survivors; survival compensates the estate.

3. PECUNIARY DAMAGES ONLY (WRONGFUL DEATH): The Wrongful Death Act limits recovery to pecuniary losses. Grief and emotional distress are NOT recoverable (but loss of companionship has pecuniary value).

4. PAIN AND SUFFERING IN SURVIVAL ACTION: Pre-death pain and suffering IS recoverable under the Survival Act.

5. MODIFIED COMPARATIVE FAULT: New Jersey bars recovery if plaintiff's negligence exceeds the combined negligence of all defendants. N.J.S.A. Section 2A:15-5.1.

6. NO DAMAGE CAP: New Jersey does not impose a statutory cap on wrongful death damages.

7. AFFIDAVIT OF MERIT: Required in medical malpractice cases within 60 days of defendant's answer. N.J.S.A. Section 2A:53A-27.

8. PUNITIVE DAMAGES: May be available in survival action for egregious conduct. N.J.S.A. Section 2A:15-5.12.

New Jersey Venue and Procedure:

• Venue: County where cause of action arose, where defendant resides, or where corporate defendant does business. N.J. Court Rules 4:3-2.
• Service: N.J. Court Rules 4:4-1 et seq.
• Affidavit of Merit: Required in professional malpractice. N.J.S.A. Section 2A:53A-26.

Key Case Law:

• Smith v. Whitaker, 160 N.J. 221, 734 A.2d 243 (1999) - Distinction between wrongful death and survival
• Green v. Bittner, 85 N.J. 1, 424 A.2d 210 (1980) - Pecuniary value of parental guidance
• Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 323 A.2d 495 (1974) - Insurer bad faith

New Jersey wrongful death law requires careful attention to the distinction between wrongful death and survival actions. This template must be customized by a licensed New Jersey attorney.