Can I recover damages from the driver who struck my child in a wheelchair? – North Carolina

Short Answer

Yes. In North Carolina, a wrongful death claim must be brought by the child’s court‑appointed personal representative (not family members individually). Any settlement usually requires a judge’s approval unless all adult heirs consent in writing. After paying approved funeral and limited medical expenses and attorney fees, the remaining funds are distributed to the legal heirs under the Intestate Succession Act, typically the parents when a child dies without a spouse or descendants.

Understanding the Problem

North Carolina; a parent; seeks recovery for a child’s death in a motor vehicle incident and needs to know who can bring the claim, who receives settlement funds, and what must happen before an insurer releases money.

Apply the Law

Under North Carolina law, only a court‑appointed personal representative (executor or administrator) may file or settle a wrongful death claim. The case is filed in Superior Court, and the statute of limitations for wrongful death is generally two years from the date of death. Settlements often must be approved by a judge unless every person entitled to the proceeds is a competent adult who consents in writing. Wrongful death proceeds are not regular estate assets; with limited exceptions, they do not pay the decedent’s general debts and instead are distributed to heirs under intestacy rules.

Key Requirements

• Personal representative: Open an estate and have the Clerk of Superior Court appoint an executor or administrator to act for the child’s estate.
• Two‑year deadline: File the wrongful death claim within two years from the date of death.
• Settlement approval: Obtain a judge’s approval unless all adult distributees sign written consent; workers’ compensation deaths are approved by the Industrial Commission.
• Priority payments: From the recovery, pay attorney fees, reasonable funeral expenses, and limited medical/hospital expenses (subject to statutory caps and lien rules) before distribution.
• Distribution to heirs: Distribute the balance according to North Carolina’s Intestate Succession Act (typically to parents when a minor dies without spouse or descendants).
• Separate handling: Keep wrongful death funds separate from regular estate assets and account for them as required.

What the Statutes Say

• N.C. Gen. Stat. § 28A-18-2 (Wrongful death) – Who brings the claim, allowable damages, expense limits, and distribution to heirs.
• N.C. Gen. Stat. § 28A-13-3(a)(23) (Personal representative powers) – Authority to settle wrongful death claims; when court approval is required.
• N.C. Gen. Stat. § 1-53 (Limitations—two years) – Two‑year statute of limitations for wrongful death.
• N.C. Gen. Stat. § 29-15 (Intestate heirs) – Classes of heirs who receive wrongful death proceeds.

Analysis

Apply the Rule to the Facts: Because a child was killed, a wrongful death claim can be pursued in North Carolina, but only by a court‑appointed personal representative. With the insurer holding funds, payment should go to the personal representative, not directly to family members. A judge’s approval is typically required for settlement unless every person entitled to the proceeds (usually the parents) is a competent adult who consents in writing. After fees and approved funeral and limited medical expenses, the balance is distributed under intestacy, which commonly means distribution to the parents when a child has no spouse or descendants.

Process & Timing

1. Who files: A parent or close relative applies to be the personal representative. Where: Clerk of Superior Court in the child’s county of domicile in North Carolina. What: Application for Letters of Administration (AOC‑E‑202) if no will; if a will exists, Application for Probate and Letters (AOC‑E‑201). When: Seek appointment promptly; file the wrongful death claim within two years from the date of death.
2. Negotiate with the insurer or file a civil action in Superior Court. For a settlement, obtain either all adult distributees’ written consents or a judge’s approval (and Industrial Commission approval if the case is under workers’ compensation). Expect the court to review attorney fees, funeral bills, medical claims, and liens (e.g., Medicare/Medicaid) before authorizing distribution.
3. Receive funds in the personal representative’s capacity, keep them separate, pay approved expenses, then distribute the remaining proceeds to the heirs under intestacy. File any required accounting of wrongful death proceeds with the Clerk of Superior Court to close the matter.

Exceptions & Pitfalls

• Only a personal representative can bring or settle the claim; attempts by others risk dismissal or delayed payment.
• Settlement approval: If any distributee is a minor or incompetent, or if not all adult distributees consent in writing, a judge must approve the settlement.
• Medical expense cap: Hospital/medical bills are subject to statutory caps and a 50% net‑recovery limit after attorney fees; funeral expenses are not subject to the same cap. Certain public benefits (e.g., Medicare) may have reimbursement rights that override caps.
• Distribution traps: Wrongful death proceeds are not regular estate assets and generally do not pay ordinary debts. Do not commingle with estate funds; maintain a separate accounting.
• Workers’ compensation deaths require approval by the Industrial Commission rather than a trial judge.
• Liability defenses: North Carolina’s contributory negligence rule may bar recovery if the decedent was found negligent, subject to limited doctrines like last clear chance.

Talk to a Wrongful Death Attorney

If you’re dealing with a fatal crash involving a child and an insurer is holding funds, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at 919-341-7055.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.