DEMAND FOR SETTLEMENT - WRONGFUL DEATH

STATE OF NEW YORK

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

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/Executor: [Administrator/Executor Name]
Claim Number: [If assigned]
Policy Number: [If known]

Dear [Recipient Name]:

This firm represents [Administrator/Executor Name], as [Administrator/Executor] 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 YORK WRONGFUL DEATH AND SURVIVAL ACTION FRAMEWORK

A. Wrongful Death Statute - EPTL Section 5-4.1

This wrongful death claim is brought pursuant to New York Estates, Powers and Trusts Law Section 5-4.1, which provides:

"The personal representative... of a decedent who is survived by distributees may maintain an action to recover damages for a wrongful act, neglect or default which caused the decedent's death against a person who would have been liable to the decedent by reason of such wrongful conduct if death had not ensued."

See Gonzalez v. New York City Hous. Auth., 77 N.Y.2d 663, 569 N.Y.S.2d 915, 572 N.E.2d 598 (1991); Liff v. Schildkrout, 49 N.Y.2d 622, 427 N.Y.S.2d 746, 404 N.E.2d 1288 (1980).

IMPORTANT - PECUNIARY LOSS LIMITATION:

New York wrongful death damages are limited to pecuniary losses only. Grief, loss of companionship, and emotional suffering are NOT recoverable in the wrongful death action (but conscious pain and suffering IS recoverable in the survival action).

B. Survival Action - EPTL Section 11-3.2

In addition to the wrongful death claim, a survival action is brought pursuant to EPTL Section 11-3.2, which provides that personal injury claims survive the death of the injured party. The survival action allows recovery of damages the decedent could have recovered, including:

• Conscious pain and suffering prior to death
• Pre-death medical expenses
• Pre-death lost wages

See McDougald v. Garber, 73 N.Y.2d 246, 538 N.Y.S.2d 937, 536 N.E.2d 372 (1989).

C. Who May Bring the Action

Under EPTL Section 5-4.1, the action must be brought by the personal representative (administrator or executor) of the decedent's estate for the benefit of the distributees.

Administrator/Executor:
[Administrator/Executor Name]
Appointed: [Date] by the [Surrogate's Court of [County] County, New York]
Estate File No.: [File Number]
Letters Testamentary/Administration Issued: [Date]

D. Distributees

Under EPTL Section 5-4.4, recovery is distributed to the "distributees" - those entitled to take the decedent's intestate property:

E. Statute of Limitations

Under EPTL Section 5-4.1, 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 York law. Sage Realty Corp. v. Proskauer Rose Goetz & Mendelsohn L.L.P., 91 N.Y.2d 30, 666 N.Y.S.2d 985, 689 N.E.2d 879 (1997).

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 York
- Occupation: [Occupation/Employer]
- Annual Income: $[Amount]
- Education: [Education level]

Family (Distributees):
- Spouse: [Name], married [years]
- Children: [Names and ages]
- Parents: [Names, if surviving and no spouse/children]
- [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 Action (EPTL Section 11-3.2).

IV. LIABILITY ANALYSIS

A. Negligence / Liability of Defendant

[Defendant Name] is liable for the wrongful death of [Decedent Name]. Under New York law, a wrongful death action lies when death is caused by a wrongful act, neglect, or default. Gonzalez v. New York City Hous. Auth., 77 N.Y.2d 663 (1991).

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 pecuniary losses to the distributees

B. Negligence Per Se (If Applicable)

[Defendant] violated [New York statute or regulation], which was designed to protect [class of persons] from [type of harm]. Under New York law, violation of a statute designed to protect a class of persons may constitute negligence per se. Martin v. Herzog, 228 N.Y. 164, 126 N.E. 814 (1920).

C. New York's Pure Comparative Fault Rule

New York follows pure comparative fault under CPLR Section 1411. The plaintiff's damages are reduced by the percentage of fault attributable to the plaintiff, but recovery is not barred regardless of the plaintiff's percentage of fault.

[Decedent Name] Was Not At Fault:

[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]

V. DAMAGES

A. WRONGFUL DEATH DAMAGES - PECUNIARY LOSSES ONLY (EPTL Section 5-4.3)

Under New York law, wrongful death damages are limited to pecuniary injuries suffered by the distributees. This includes:

1. Loss of financial support the decedent would have provided
2. Loss of services the decedent would have rendered
3. Loss of parental guidance, training, and education (for minor children)
4. Funeral expenses (reasonable)
5. Interest from date of death

NOT RECOVERABLE in wrongful death:
- Grief, sorrow, or mental anguish
- Loss of companionship or consortium (for adults)
- Punitive damages

See Gonzalez v. New York City Hous. Auth., 77 N.Y.2d 663 (1991).

B. SURVIVAL ACTION DAMAGES (EPTL Section 11-3.2)

The survival action allows the estate to recover damages the decedent could have recovered:

1. Conscious pain and suffering before death
2. Pre-death medical expenses
3. Pre-death lost wages
4. Loss of enjoyment of life (pre-death)

Note: The decedent must have been conscious and aware of pain and suffering for recovery. McDougald v. Garber, 73 N.Y.2d 246 (1989).

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 York recognizes the pecuniary value of parental guidance, nurturing, and education for minor children. Gonzalez v. New York City Hous. Auth., 77 N.Y.2d 663 (1991).

4. Funeral Expenses:

D. NON-ECONOMIC DAMAGES - SURVIVAL ACTION

1. Conscious Pain and Suffering:

[Decedent Name] survived for [time period] following the initial injury. During this time, [he/she]:
- Was conscious and aware of [his/her] condition
- 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 Conscious 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 EPTL Section 5-4.4:
- Wrongful death damages are distributed to distributees according to the intestacy statute
- Survival action damages are estate assets distributed according to will or intestacy

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 Supreme Court of the State of New York, [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 York law:

1. An insurer has a duty to act in good faith toward its insured. Pavia v. State Farm Mut. Auto. Ins. Co., 82 N.Y.2d 445, 605 N.Y.S.2d 208, 626 N.E.2d 24 (1993).

2. Failure to accept a reasonable settlement demand within policy limits may expose the insurer to liability for the full judgment.

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

VIII. DOCUMENTATION ENCLOSED

• Death certificate
• Letters Testamentary / Letters of Administration
• 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 caused substantial pecuniary losses.

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 Supreme Court of the State of New York.

Please contact me at your earliest convenience to discuss resolution.

Respectfully submitted,

[FIRM NAME]

By: _________________________________
[Attorney Name]
New York State Bar Registration No. [Number]
Attorney for the Estate of [Decedent Name]

ENCLOSURES: [List]

cc: [Administrator/Executor]
[File]

NEW YORK-SPECIFIC PRACTICE NOTES

Critical New York Wrongful Death Considerations:

1. PECUNIARY LOSS ONLY: New York wrongful death damages are LIMITED to pecuniary losses. Grief, loss of companionship, and emotional distress are NOT recoverable in the wrongful death action.

2. SURVIVAL ACTION ESSENTIAL: To recover for pre-death pain and suffering, a survival action must be filed. This is separate from wrongful death.

3. CONSCIOUS PAIN AND SUFFERING: Survival action recovery for pain and suffering requires proof the decedent was conscious and aware. McDougald v. Garber, 73 N.Y.2d 246 (1989).

4. LOSS OF PARENTAL GUIDANCE: For minor children, loss of parental guidance, nurturing, and education has pecuniary value and IS recoverable.

5. PURE COMPARATIVE FAULT: New York follows pure comparative fault - recovery is reduced but never barred. CPLR Section 1411.

6. NO DAMAGE CAP: New York does not cap wrongful death damages.

7. NO PUNITIVE DAMAGES: Punitive damages are NOT recoverable in New York wrongful death actions.

8. MEDICAL MALPRACTICE: CPLR 3012-a requires Certificate of Merit; 90-day notice to medical providers.

New York Venue and Procedure:

• Venue: County where one of the parties resides or where cause of action arose. CPLR 503.
• Service: CPLR Article 3.
• Certificate of Merit: Required in medical malpractice. CPLR 3012-a.

Key Case Law:

• Gonzalez v. New York City Hous. Auth., 77 N.Y.2d 663 (1991) - Pecuniary loss limitation
• Liff v. Schildkrout, 49 N.Y.2d 622 (1980) - Elements of wrongful death
• McDougald v. Garber, 73 N.Y.2d 246 (1989) - Conscious pain and suffering

New York wrongful death law limits recovery to pecuniary losses only. This template must be customized by a licensed New York attorney.