Survivor's Guide to Civil Remedies Against Criminals

The Survivors' Guide To Civil Remedies Against Criminals

When the fabric of a family has been torn apart by a senseless act of violence, the State of Arizona prosecutes the perpetrator in a criminal case. However, the victim's family is not a party to that action. The County Attorney's office represents the State of Arizona in criminal prosecution, and not the surviving spouse, parents, or children.

This material is intended to explain the civil remedies available to family members whose loved one has been killed. The decision whether to bring a civil lawsuit against the perpetrator is an individual decision that each family must make. However, the information contained herein will educate survivors as to their rights and remedies under the law so that informed decisions can be made.

1. Who can bring a wrongful death lawsuit?

According to A.R.S. § 12-612, an action for wrongful death can be brought on behalf of the surviving spouse, adult or minor children and parents of the decedent. The action can be brought by individuals or by the personal representative of the deceased person on behalf of those individuals. Wrongful death lawsuits cannot be brought by brothers, sisters, grandparents, uncles and aunts or fiances. In my opinion, it is a waste of time to bring a lawsuit unless there is a substantial chance of success on the merits and a likelihood of being able to collect a judgment.

2. What are the civil remedies available against an adult perpetrator?

Homeowners Insurance

Homeowners insurance provides insurance coverage for members of the household who injure or kill people. Homeowners insurance covers the actions of their insured regardless of whether the acts take place in the home or out on the street. (Homeowners policies generally exclude coverage for deaths or injuries arising out of the use of a motor vehicle. However, these are often covered by automobile insurance.)

As a general rule, if an adult intentionally and willfully kills another person, insurance will not cover this act. Virtually all homeowners' insurance policies contain an 'intentional act exclusion'.

Under the intentional act exclusion, insurance coverage will not cover harm caused by an insured if the insured acted with a specific intent to injure the victim. Republic Insurance Co. v. Fiedler, 178 Ariz. 528, 875 P.2nd 187 (App. 1994) Normally, whether a perpetrator has the intent to injure is a question of fact for a jury. However, in Arizona, a conclusive presumption of intent to injure arises when the insured commits an act that is 'virtually certain to cause injury.'

For example, Arizona courts have conclusively held that sexual molestation by an adult of a minor is conclusively presumed to be an intentional act and excluded from insurance coverage. This holding was made despite expert testimony of psychologists that a pedophile did not subjectively intend to hurt his victim. Twin Cities Fire Insurance Co. v. Doe, 163 Ariz. 388, 788 P.2d 121 (App. 1991)

There are instances where the criminal actions by an adult can be covered by insurance. For example, if the insured claims that he was acting in self defense but accidently used greater force than necessary to defend himself, Homeowners insurance will provide coverage for the harm caused by the defendant.

Similarly, if a criminal defendant through intoxication, emotional problems, or brain injury lacks the mental capacity to act rationally and cannot form the subjective intent to cause the harm that the criminal has caused, an insurance policy may provide coverage.

More and more frequently insurance companies are adding a criminal act exclusion to their homeowners policies. Under these policies, coverage is excluded when an insured is convicted of a crime. However, the Arizona Courts have suggested that there are some limits to this and that minor criminal offenses may not eliminate insurance coverage. American Family Insurance v. White, 204 Ariz. 500, 65 P3d 449 (App. 2002).

Automobile Insurance

In Arizona, all individuals are required to have liability insurance on their vehicle in a sum not less than $15,000 Per Person and $30,000 Per Occurrence. In addition, insurance companies are required to offer their insureds uninsured and underinsured motorist coverage up to the amount of the liability policy limits. Uninsured and underinsured motorist coverage provides coverage in the event that the third party who caused the motor vehicle accident either has no insurance or has inadequate insurance to pay for the damages that he has caused. Uninsured motorist coverage and underinsured motorist coverage only provide coverage for bodily injury or death and do not provide for property damage.

Uninsured motorist and underinsured motorist coverage follow the insured. In other words, if a person is standing on a street corner and is killed by an uninsured driver or underinsured driver, his uninsured or underinsured motorist limits will cover him even though he is not in his vehicle. Similarly, if a person is on a bicycle or in another individual's car and is struck by an uninsured or underinsured driver, his policy will cover him.

Over the past several years, litigation has taken place as to whether drive by shootings are covered by car insurance. The Arizona courts have held that drive by shootings are not covered by car insurance as the injuries do not arise out of the use of the vehicle and also because these occurrences are not 'accidents' as defined in automobile insurance policies. See generally Ruiz v. Farmers Insurance Company of Arizona, 177 Ariz. 101, 865 P.2nd 762 (1993); Benevides v. Arizona Property and Casualty Insurance Guaranty Fund, 184 Ariz. 610, 911 P.2nd 616 (App. 1995).

However, homeowners insurance may cover the action of a juvenile shooter or provide coverage for a person that negligently provides a gun to the shooter. (See Section 4)

3. Compensation for crimes committed by juveniles

Sadly, more and more violent crimes are committed by juveniles. However, unlike adults, when a juvenile 14 years or younger commits what appears to be an intentional act, the parents' homeowners insurance may provide coverage for the harm that their child causes.

In USAA v. DeValencia, 190 Ariz. 436, 949 P.2nd 525 (App. 1997) the court was faced with a situation where a 14 year old child sexually molested another child. As previously noted, if an adult had done this, it would be conclusively presumed that there was a subjective intent to injure and there would be no insurance coverage. However, because of the age of the perpetrator, the court concluded that there was a question of fact as to whether the child subjectively intended to injure the victim and homeowners insurance might be required to provide coverage. Other issues arise when a juvenile has committed an offense.

Finally, under the Family Purpose Doctrine, a parent who furnishes a vehicle for the use or convenience of the family is liable for the negligence of the family member who is using the vehicle.

A.R.S. § 12-661 states that:

A. 'Any act of malicious or willful misconduct of a minor which results in any injury to the person or property of another, to include theft or shoplifting, shall be imputed to the parents or legal guardian having custody or control of the minor whether or not such parents or guardian could have anticipated the misconduct for all purposes of civil damages, and such parent or guardian having custody or control shall be jointly and severally liable with such minor for the actual damages resulting from such malicious or willful misconduct.'

According to Section B of the same statute, the parents are liable in an amount not to exceed $10,000 for each tort of the minor. Under the statute, parents are automatically liable for intentional offenses that their children commit. However, it may be difficult to collect from the parents if they do not have the money to pay such a judgment.

A parent may also be liable because of their own negligence. If a parent is negligent in failing to supervise a child or providing the child access to a gun, the parent may be liable up to any amount that the jury deems appropriate. In addition, there may be homeowners insurance coverage for the parents' negligence.

4. What if other individuals or businesses bear some responsibility for a person's death?

In addition to suing a perpetrator, or the parents of a perpetrator, there may be other entities that bear responsibility for a death and these entities should be looked at closely. For example, if a tavern or bar serves an individual when they know or should know that a person is intoxicated, that establishment may bear some responsibility for a death caused by their intoxicated patron. Unlike a licensee, a social host is not responsible if an adult guest becomes intoxicated and then causes an accident. However, a social host can be liable if he or she serves alcohol to a minor and the minor causes an injury or death as a result of driving while intoxicated.

Businesses, like shopping malls, stores, nightclubs, etc. have a duty to exercise reasonable care for the safety of people invited to their property. For example, if a mall has reason to know of gang activity at the mall and fails to provide reasonable security to prevent violence, the shopping mall may be liable for violence that occurs. The standard of care that each business must comply with is a question of fact usually established by expert testimony. Experts in security view the crime data for the business and other pertinent information to determine what the business was required to do to provide adequate security and whether that standard was met in each particular case.

An analogous situation is a landlord's duty to provide reasonably safe premises for his tenants. This duty has not been fully explored in Arizona case law. However, there is clear case law indicating that in 'common areas' the landlord has a duty of reasonable care towards guests and tenants, including a duty to provide security for foreseeable criminal conduct by third parties.

Probation and Parole Officers

Often victims wonder whether a probation officer or parole officer can be held responsible for crimes committed by a person under their supervision. According to Arizona Statutes, a public employee is not liable for injuries unless the public employee actually intended to cause the injury or was 'grossly negligent' when the injury results 'from the probation, community supervision or discharge of a prisoner or a youth...'

Other individuals or entities that may bear responsibility for a death include a municipality for a bad road design, or a product manufacturer for manufacturing a dangerous or defective product. All entities that bear responsibility for a death should be held accountable for their actions.

Firearms

Certain people (including convicted felons and children) are prohibited by law from having guns. Additionally, people who are impaired by drugs or alcohol shouldn't be armed. I've sued people for negligently allowing such people to have access to firearms.

5. How long do I have to make a claim against criminals or other individuals responsible for a person's death?

In general, the statute of limitations to bring a claim for wrongful death or for personal injury is two years from the date of the occurrence. If you wait too long to file your lawsuit, you are barred and cannot recover any money. However, some exceptions exist.

For example, in a medical malpractice case, the statute of limitations is two years from the date you knew or should have known medial malpractice occurred.

When a minor has a cause of action, the statute of limitations does not begin to run until the minor is 18. In other words, whatever the applicable statute of limitations is, it does not begin to run for a child until the child has his or her 18th birthday.

There are other shorter statutes of limitations. In a case against a governmental municipality or government employee, a written claim must be made for a specific sum of money within 180 days after the cause of action occurs. In addition, a lawsuit against any government entity or public employee must be brought within one year from the time the cause of action occurs. I have had cases against a police department for chasing a suspect through a crowded city street only to have the suspect crash into an innocent girl, killing her. In that case, expert testimony was presented establishing that the chase should not have taken place. (The suspect they were chasing was actually a man who had committed no crime at all. He was trying to reconcile with his wife and had left a note on her door. The man fled from police believing he was in violation of a court order telling him to stay away from his wife.)

What if you do not know who the perpetrator is? Although it has not been expressly decided by the Arizona appellate courts, in this author's opinion, generally, if the responsible person has concealed his identity, the statute of limitations does not run until the victim knew or should have known the identity of the perpetrator.

6. What damages can the victim recover in a wrongful death case?

The largest element of damage is usually loss of companionship. When a parent loses a child, as a general rule, it can be argued that the child would have been alive for the remainder of the parent's life. Consequently, courts look to annuity tables to determine the life expectancy of the parent. There is no fixed rule to determine the amount of damages. However, in establishing the amount of damages, lawyers present evidence of the close relationship between the survivors and the decedent. Telephone bills, copies of Mother's Day and Father's Day cards, photographs, video tapes and other tangible evidence are used to establish the closeness of the relationship. Similarly, anecdotal testimony is permitted to establish the close relationship between the decedent and the survivors.

In addition, economists may be hired to establish the loss of income to the family. Finally, burial expense and other out of pocket expenses relevant to the decedent's passing are recoverable.

Conclusion

A decision to pursue a civil claim against criminals and individuals is a decision that each family must face. However the decision should be made based on knowledge and an understanding of the law and not by default.

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