When a loved one is killed by the fault of another, a claim for wrongful death may arise. Nevada Revised Statute 41.085 splits wrongful death claims in two subparts; claims by the heirs and claims by the Estate. Generally, the heirs can recover damages for grief, sorrow, loss of support, companionship, and the deceased’s pain and suffering whereas the Estate can recover damages for medical expenses, funeral expenses, and any other penalties the deceased could have recovered to pay his debts.

Although these claims are technically separate, a suit for wrongful death should be brought by the heirs and the Estate at the same time, because if claims are alleged at separate time, the second set of claims might be barred. In Alcantara v. Wal-Mart, a man was fatally assaulted in a Wal-Mart parking lot.[1] The deceased’s Estate and some of the heirs sued Wal-Mart for negligence and a jury found Walmart was not negligent. After the suit ended, Alcantara brought a second suit against Wal-Mart as an heir. Wal-Mart moved to dismiss the second suit arguing claim preclusion and issue preclusion.

Claim Preclusion

Generally, claim preclusion bars lawsuits where a final judgment has been entered in a prior lawsuit which involved the same parties and the same claims that could have been brought in the first place. The Supreme Court found that claim preclusion did not bar Alcantara’s suit because her claims were specific and necessarily different from the prior claims brought. However, this finding did not end the inquiry because Wal-Mart was also moving to dismiss based on issue preclusion.

Issue Preclusion

Issue preclusion prevents a second suit when the second suit brings identical issues to the first case, the first case reached a ruling on the merits, the party to the second suit was in privity with the first, and the issues were actually litigated. The Nevada Supreme Court found that all four elements were met and the suit was barred by issue preclusion. The issues were identical, a final ruling was reached, and the issues were actually litigated. The only factor that required great consideration was whether Alcantara was in privity with the Estate and heirs from the first suit. Privity exists if someone’s interests are adequately represented by the first suit. In this case, the Court found that Alcantara’s interests were adequately represented by the first suit because as a beneficiary of the Estate, the Estate was acting in her best interests and on her behalf. Accordingly, Alcantara’s entire lawsuit was dismissed.

The cautionary tale of Alcantara’s situation is that it is best for all heirs and the Estate to bring their wrongful death claims together, so they don’t risk a later suit being barred. Alcantara missed out on the opportunity to make her own claims against Wal-Mart because she had not joined in the first suit. If she had the opportunity to bring her own claims, she may have been able to present a case for loss of companionship, grief and sorrow, or other damages that were specific to her. The opportunity to do that was forever lost.

If you are faced with the loss of a loved one possibly due to the fault of another, give our experienced probate attorneys at Clear Counsel Law Group a call to set up a consultation.

[1] 130 Nev. Adv. Op. 28, April 3, 2014.

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