The prosecution and the civil claim
The criminal case is brought by the state and focuses on punishing the driver; the family is not a party to it, though relatives can usually be heard as victims and may be entitled to restitution. A wrongful death claim is a separate civil case brought for the benefit of certain close family members, often alongside a claim that belongs to the estate. A conviction can help the civil case, but the civil claim does not require one, and its burden of proof is lower. In New York the claim is brought by the personal representative of the estate, which usually means someone has to be appointed through the Surrogate's Court before the case can be filed. What can be recovered, and for whom, is set by statute and often differs from what families expect, so it is worth discussing early.
Looking beyond the driver
The driver's own insurance often has limits far below the loss. New York's dram shop law can allow a claim against a bar, restaurant, or store that unlawfully sold alcohol to someone visibly intoxicated, and a separate rule addresses those who furnish alcohol to people under the legal drinking age. Ordinary social hosts serving adult guests generally are not liable under those laws. Other possible sources include the driver's employer if the driver was working, the vehicle's owner if someone else owned it, and the underinsured motorist coverage on the family's own auto policy. Receipts, bar tabs, and witness accounts from wherever the driver was drinking can disappear quickly, so they should be identified early.
What the family can do now
Families often feel pressure both to act and to wait. We help sort out what needs attention first: who will serve as the estate's representative, which insurers must be notified, and what evidence from the criminal case can be obtained and when. Insurance adjusters may call early, and it is reasonable to refer them to your lawyer before giving any recorded statement. Time limits apply to these claims, and notice requirements can be much shorter if a public entity is involved, for example when a government vehicle or a road condition played a part. We move at a pace the family can manage while keeping those deadlines in view.
