When you lose a loved one due to someone else’s negligence, your grief temporarily overshadows your financial needs. Only as you transition back to everyday life do you consider how to recover compensation for the income your relative provided. When you consult with an Oklahoma wrongful death attorney, you receive critical information about who can file a wrongful death lawsuit and how and when they should proceed.

What Is the Statute of Limitations on Wrongful Death Lawsuits in Oklahoma?

In the state of Oklahoma, the eligible party has only two years to file a wrongful death lawsuit. If the defendant entity is state operated, then the Oklahoma Governmental Tort Claims Act will apply will shorten this deadline. If the statute of limitations has elapsed before the lawsuit is filed, the court will dismiss the case, and your claim will be lost forever.

Who Can File a Wrongful Death Lawsuit in Oklahoma?

A personal representative can file a wrongful death lawsuit under Oklahoma’s wrongful death statute, O.S. §12-1053. An attorney files the lawsuit, naming the personal representative as the plaintiff and the responsible party as the defendant. If the responsible party is also deceased, the lawsuit names their personal representative as the defendant.

The lawsuit includes a Complaint (in state court) or a Petition (in federal court) that formally presents the plaintiff’s allegations against the responsible party. It explains how their actions, errors, or omissions allegedly caused the decedent’s fatal injuries.

Grandparents Have a Separate Right to File a Lawsuit for the Death of an Unborn Child

After Senate Bill 1728 was signed into law in 2020, under certain circumstances, Oklahoma’s wrongful death statute under O.S. §12-1053 (F) now gives parents and grandparents the right to file a separate action against a physician who causes the death of an unborn child.

Who Chooses the Decedent’s Personal Representative?

In its definition of a personal representative (PR), the statute governing Oklahoma probate procedure, O.S. §58-11, includes executors, administrators, conservators, and guardians as possible personal representatives of an estate. A person can become a personal representative through several different avenues. If the family can agree ahead of time, the judge will almost always appoint who the family wants as the personal representative for their deceased loved one. Every once in a while, family members cannot agree, and can be named co-personal representatives, or the court will decide who would best serve as the PR.

Executor

If the decedent had a will, they may have asked a friend or relative to accept responsibility for handling their estate after their death as the executor of their estate. The probate court will not recognize an executor if they are under age 18, lack integrity, are guilty of an “infamous” crime (imprisonment over a year), or are not competent enough to handle the responsibilities. If the court doesn’t approve the chosen executor, it appoints an alternate.

Administrator

When a person dies without a will, the court names an administrator. In making the appointment, the court follows the order of priority listed in the probate statute O.S. §58-122:

• A surviving spouse, or their competent appointee
• One of the decedent’s adult children
• A parent
• A sibling
• An adult grandchild
• Next of kin, if they are entitled to a portion of the estate
• Creditors
• Any legally competent person

Conservator or Guardian

Conservators and guardians often become personal representatives due to circumstances unrelated to a wrongful death event. Sometimes, the court appoints a conservator to make key decisions for a legally incompetent adult. Under certain circumstances, courts appoint guardians to make decisions for children younger than age 18.

What Types of Damages Can a Personal Representative Recover?

Personal injury attorneys resolve a wrongful death lawsuit by trying the case or settling it before or during a trial. In either instance, the personal representative recovers damages, on behalf of the deceased, as described in the state’s wrongful death statute. These include:

• Mental pain and anguish the decedent suffered before death
• Children’s and parents’ grief and loss of companionship
• The spouse’s loss of consortium
• The survivors’ financial losses, based on the earning potential of the victim had they lived (dependent upon factors such as the decedent’s age, occupation, earning capacity, health habits, and life expectancy)
• Any recoverable punitive damages
• Medical and burial expenses, to be distributed to the person, estate, or government entity that paid them

If an attorney settles a wrongful death lawsuit or obtains a court judgment against the defendant, the compensation becomes an estate asset subject to appropriate distribution.

The Court will usually agree with allocating the proceeds based on what the family members (the heirs) have agreed to. If the heirs cannot agree, then one of the attorneys for the family members will need to file a “Motion to Disburse” and the exact allocation will be up to the judge, who will first review evidence and hear testimony from everyone wanting money from the proceeds.

A common example would be if someone has remarried, and the new spouse is not wanting the adult stepchildren to recover anything.

Who Is Responsible for Paying in a Wrongful Death Lawsuit?

When a person, company, or organization causes someone’s death, they become responsible for the decedent’s and their survivors’ recoverable damages. Depending on the circumstances, the responsible party may have liability insurance to pay for their negligent actions. While insurers usually investigate and determine liability for their insured’s actions, they rarely pay compensation until they confirm who is legally entitled to receive it. As a “best practice,” insurance companies will usually get a lawsuit filed before dispursing any wrongful death proceeds. This protects against a future potential claim if they didn’t include someone, and provides them notice of the claim/proceeds, that should have been included.

The Personal Representative Distributes the Decedent’s Assets

In fulfilling their role, a personal representative (their attorney usually) inventories the estate’s assets and arranges evaluations. They pay the decedent’s debts, taxes, and other valid claims against the estate.

Except for asset distributions mandated by Oklahoma statutes, the court determines which survivors receive the proceeds. Once the probate court completes its approval process, the representative distributes all of the estate assets according to the will or statutory distribution requirements. This includes any wrongful death compensation recovered.

Still Have Wrongful Death Questions?

We’ve tried to highlight the process, and most frequently asked questions we hear, but if we’ve missed something, please send us a message or give us a call. There’s a good chance other people have a similar question, so we’ll answer your question and then update the article.

Contact an Oklahoma Wrongful Death Lawyer

When you lose a loved one because of someone’s negligent behavior, you suffer devastating personal and financial losses. When you arrange a free consultation with an Oklahoma wrongful death attorney, you can learn more about your legal rights. During your consultation, an attorney will talk to you about your loved one’s accident and explain your options for making a claim or filing a lawsuit. Your attorney will work diligently to obtain the highest available compensation for the loss you have incurred.

Slip-and-fall cases are relatively common in personal injury litigation, so it’s no surprise that a considerable number of these cases involve the largest grocery chain in the U.S.

With Walmart’s size, they even created their own insurance company! If you need to contact them directly, Walmart’s insurance company is:

Claims Management, Inc.

PO Box 14731

Lexington, KY 40512

(800) 527-0566

The Grocery Goliath

As of January this year, Walmart operates 5,342 branches in all 50 states and Washington, D.C. (and another 6,101 branches outside the U.S.). Texas is home to a tenth of its in-country stores, way more than Arkansas where it established its first store in 1962. D.C. has the least number of stores, having only five.

Walmart is the largest grocery chain in terms of sales. For the 2020-21 fiscal year, the company generated an estimated $434 billion, up by 8.53% from almost $400 billion from the 2019-20 fiscal year. Some grocery brands have more stores, but none of them comes close sales-wise–and that’s not counting Walmart’s $125-billion in overseas sales.

Having this much capital means this grocery giant operates differently as far as handling liability claims go. Whereas most businesses would secure third-party liability insurance, Walmart lets its own insurance company, Claims Management, Inc. (CMI), handle claims.

Results have been less than stellar. CMI has been doing business for 27 years, yet it has yet to be accredited by the Better Business Bureau (BBB). Its entry currently stands at one out of five stars based on customer reviews, and the BBB lacks information on the company to give it a rating.

You might think Walmart could afford to improve their stores’ safety standards, given how much they make in a year. However, its stores have been at the heart of crime reports and public safety concerns over the years. Its millions of workers–cashiers, stockers, and everyone in between–are at much risk as their customers.

More importantly, as most personal injury lawyers would tell you, Walmart has a system for attempting to avoid large payouts.

The Anatomy of Walmart’s Defense

In a personal injury case, let alone a slip-and-fall one, most establishments won’t admit fault (negligence). Walmart tends to take this one step further with various tactics. Operating its own claims agency is just one of many.

• The Recorded Statement Trap

You know how part of the Miranda rights goes: “Anything you say can and will be used against you in a court of law.” Of course, as the injured party, you’re not a criminal; but Walmart can take advantage of even offhanded comments to strengthen its case.

One move Walmart might try involves getting the injured party to ask for a recorded statement about the incident. Sometimes, they throw in a bone in the form of a promise to expedite the person’s claim or reimburse their medical expenses in exchange for a statement.

Walmart’s purpose in asking, or claiming, a recorded statement is required? To build their defense case.

As a precaution, never agree to give any statement before consulting a lawyer. Contrary to popular belief, you’re not obligated to provide one, at least until you’ve filed a formal lawsuit, and that would at a deposition. Having a lawyer prepare the injured party for a deposition can better protect the victim against misleading questions. A recorded statement early on, while you’re still treating, doesn’t help resolve your claim favorably.

• Downplaying The Severity

Building a slip-and-fall case against Walmart or any establishment requires the injury to be severe enough. Most personal injury lawyers are reluctant to take claims where the damage doesn’t result in a broken bone or worse (it’s expensive to take a case to trial).

Not to sound like a conspiracy-theorist, but there’s a more pressing reason Walmart downplays the injury: either to encourage you to not get the medical treatment you need, or to later try to claim that you are getting too much medical treatment.

As a result, the adjuster may return to you with a far less offer than you expect. Your priority is getting the medical treatment you need, not following the advice of Walmart.

• Delaying Tactics

No matter how severe the injury, the victim will still have to pay their day to day bills. A broken limb, or back injury, can throw a wrench even in the most well-planned budget. Insurance companies know how to take advantage of this situation.

The Walmart adjuster may take weeks to return your phone call. As the wait grows longer, the adjuster may be counting on your bills piling up to the point that where you have no choice but to accept a low settlement offer.

These delaying tactics come in many forms, such as:

• Blaming the victim for not cooperating
• Constantly asking for new paperwork
• Changing the assigned contact person (adjuster)
• Not answering calls or correspondence
• Refusing to process the claim without a lawyer

Delaying tactics rely on the injured party’s urgency to pay off their bills. It’s hard to urge them not to accept the adjuster’s low-ball offer if they’re low on funds themselves.

Establishing Liability

Even if a person slipped and fell during a grocery run at an Oklahoma City Walmart, it doesn’t automatically hold Walmart accountable. There’s a possibility that a fellow grocer’s butterfingers had made the puddle that caused the slip and fall. Establishing liabiliy against Walmart usually boils down to:

1. Did Walmart create the dangerous condition?
2. If not, did Walmart have notice of the dangerous condition?
3. If not, should Walmart have known of the dangerous condition?

For a slip-and-fall case to stand (sorry for the pun on a slip and fall), the plaintiff must prove negligence or that one party had done something that made the situation less safe to a reasonable person and caused harm. Holding a party liable for negligence involves:

• Duty – Walmart has a legal responsibility to ensure the safety of its customers. This should be relatively easy to prove, as businesses, regardless of their size, are obligated to maintain a safe shopping environment. Again, the case may hinge on why the dangerous condition was there. Walmart isn’t responsible if someone spills their drink a few seconds before you walk through the puddle. On the other side, if the puddle has been their for a significant time – Walmart should have had plenty of time to clean it up – or at the very least provide notice of the wet floor.
• Breach – Walmart failed to fulfill its legal responsibility. Being aware of the cause of the slip and fall but doing nothing to resolve it is considered a breach of such an obligation.
• Causation – Walmart’s failure to fulfill its duties caused the slip-and-fall incident. In this case, causation may not be immediately apparent. Walmart will likely blame you for the type of shoes you are wearing – or that you simply somehow saw the clear liquid on the floor, and chose to walk through it.
• Damage – The accident at Walmart caused your injuries. Most people have “pre-existing” health conditions. For example, on a shoulder injury case, Walmart’s attorneys will likely claim that the shoulder was already injured – somehow before the fall tore the injured party’s rotator cuff.

Establishing liability through these factors doesn’t mean the case is as good as won. Defendants can attempt to hold the plaintiff somewhat, if not equally, liable for the incident. Three common ways to do this involves:

• Comparative/Contributory Negligence – Walmart could argue that the victim played a part in it depending on the state where the incident occurred. In a comparative negligence state (like Oklahoma), the plaintiff may see their claims reduced by, say, 40% if a jury agrees that the plaintiff should have been paying more attention and that the plaintiff was 40% at fault. Meanwhile, in a contributory negligence state, the plaintiff may be denied claims if they’re at least 1% responsible for the occurrence (Oklahoma had years ago).
• Assumption of Risk – Walmart could prove that the victim knew the risk of stepping onto the puddle or a slippery area yet continued to do so. Icy sidewalks are the most common example here, and it’s highly likely a jury will agree with Walmart.
• Open and Obvious Condition – Walmart is not liable if they can show that the dangerous condition was “open and obvious.” Walmart may point to the wet floor sign in a bathroom to show that the plaintiff know that their bathroom was flooded.

Building Your Claim

Going up against a corporate giant like Walmart won’t be easy. The company will attempt to reduce, if not deny, your claim and call it a day. So, it’s important to build your case from the beginning.

First, secure as many pieces of evidence as possible. The more documents and evidence you compile, the harder it’ll be for Walmart to diminish your case. Your documentation should include (but not limited to):

• Photos and videos of the incident scene
• Statements from witnesses on the scene
  • Don’t rely on Walmart’s Incident Report. Write down the contact information of anyone you talk to, or that witnessed your injury.
• Medical records and bills from your doctors
• Proof that you missed workdays due to your injury (for your lost income claim)
• The clothes and footwear you wore at the time of the accident

Second, immediately report the incident to Walmart. Ideally, you can do this where you were injured – before Walmart can clean up their mess. While this may appear counterintuitive, Walmart needs to know that an incident happened in one of their stores. One of their managers should be called, and will come to you in the store. Ask for a copy of the incident report before you leave the store.

Lastly, if you have questions, talk with a lawyer. Personal injury attorneys will meet with you for free to help you evaluate your case.

Maximum Medical Improvement, or MMI for short, is a simple yet important concept in every personal injury claim. It refers to the point in your medical treatment beyond which you are not expected to get any better from further medical care. This is not to imply that your medical treatment is finished. In many cases, you will still require ongoing treatment (e.g., medications, physical therapy, or assistive devices), but this treatment is intended to maintain your current level of health and functioning. It’s simply a bad idea to try to settle a personal injury case until either the patient has fully recovered or reached MMI. A few examples should make this concept easier to understand.

Examples of MMI

Example 1: Steve is involved in a car accident and suffers a herniated disc in his lower back. This herniation causes not only pain, but also causes Steve’s legs to go numb on occasion. Steve has surgery on his back, which removes the occasional numb feeling, but he still has pain. Six months after Steve’s surgery, Steve’s doctor concludes that another surgery would not relieve Steve’s pain and that Steve is as good as he’s going to get. Steve will require medications for his back pain for the foreseeable future, will have stretching exercises to perform, and is restricted from certain activities which could re-injure or aggravate his back. At this six-months-post-surgery point in time, Steve is at MMI. Steve is not as healthy as he was before the accident and he never will be, but his doctor has concluded that Steve has achieved the maximum level of recovery that medicine can provide.

Example 2: Ann slipped and fell in a grocery store and tore her rotator cuff when she put her arm down to break her fall. Ann had surgery to repair her rotator cuff, but six months after the surgery, Ann still had a great deal of pain in her shoulder and did not have a good range of motion in that arm. Ann underwent physical therapy and takes her medications as directed, but she is still not improving. It turns out that scar tissue formed around her surgery site (a somewhat common complication) and a second surgery to remove the scar tissue is recommended. Ann is not yet at MMI, as her doctor still believes that both her pain level and range of motion will improve from the second surgery (and Ann has no objection to having another surgery).

Example 3: Joe strained his lower back when he slipped on spilled grease on the floor at a fast food restaurant. His lower back pain improved over eight months of treatment, but did not go away entirely. His doctor does not expect that Joe will ever be pain-free from this injury, and Joe will require over-the-counter pain medication, a heating pad and occasional muscle relaxers to treat his back pain from now on. At the point Joe’s pain level stopped improving and leveled off, Joe was at MMI.

Why does MMI matter?

MMI is important to a personal injury case because it allows the plaintiff’s lawyer to predict your future damages — medical costs, lost wages and pain and suffering. Until you have reached MMI, a fair settlement value or jury verdict will be near-impossible to determine. For example, the woman in “Example 2” may have thought that she would only require one surgery to repair her torn rotator cuff. Had she settled her case before reaching MMI, she would not have accounted for the significant additional medical costs, pain and lost work time from her second surgery.

Often when you reach MMI, your doctor will sometimes assign you a “permanent impairment rating,” which is a number, given as a percentage, representing the reduced functioning of your body. There are two types of impairment ratings, one for the injured body part and one for your whole body. For example, you could have a 15% impairment rating as to your right arm, and a 6% whole body impairment. What this means is that your arm is functioning at 15% less than it was prior to the accident, translating into your whole body functioning at 6% less (I just pulled these numbers out of a hat — they are not from the official guidelines, most often the AMA Guides to the Evaluation of Permanent Impairment, your doctor will use). If you have injuries to more than one body part, each will be assigned an impairment rating and the guidelines will show how they are added together to reach a whole body impairment number. A permanent impairment rating allows lawyers and insurers to compare the values between different injuries, but it is definitely not an exact science. An impairment rating will not be assigned until you reach MMI.

Who Decides When I’ve reached MMI?

Your doctor, not your lawyer, will decide when you’ve reached MMI. Remember, it’s maximum medical improvement, not maximum legal improvement.

Does Being at MMI Mean That My Medical Condition Won’t Worsen?

No. Often people who are at MMI are expected to get worse as time goes on. The most common example is someone developing arthritis in an injured joint. However, being at MMI makes it easier for your doctor to predict how your condition will worsen over time, so that you can recover for this expected downturn in your health.

When will I reach MMI?

Each person’s medical treatment (and case) is different, but most doctors will not think about placing you at MMI until at least six months after your injury. Obviously, this varies wildly, as someone that is young may recover significantly faster. It could be much longer, sometimes years in cases with multiple complications. This can be a source of frustration with plaintiffs, who obviously would like to be compensated as quickly as possible after an accident. However, waiting until you are at MMI, or through with your medical treatment, is the best way to ensure that you are fully compensated for your injuries.