If a person is killed as a result of someone else’s negligence in Virginia, the Decedent’s family may bring what is known as a wrongful death claim. Most claims in Virginia are governed by statute, and wrongful death claims are no exception. Virginia Code § 8.01-50 governs wrongful death actions brought under Virginia law.
Who Can File a Virginia Wrongful Death Lawsuit?
In Virginia, the personal representative of the deceased person is the plaintiff pursuant to Virginia Code § 64.2-454. Many potential clients are very confused about what it means to be the personal representative. A personal representative, or administrator, is someone who controls a deceased person’s “estate.” An estate is defined as all of the money and property owned by a person after their death. Further, when someone dies, they obviously can no longer file a lawsuit. Therefore, a vehicle must be established to allow a lawsuit to proceed. That vehicle is called an estate.
In order to become a personal representative of a family member’s estate, the person must go to the local probate/estate clerk of the circuit court. While this sound daunting, under Virginia Code § 64.2-454, a person may be appointed a personal representative of a decedent’s estate solely for the purpose of prosecuting or defending a lawsuit. Generally, this can be accomplished by a quick trip to your local circuit court. It does not involve filing any inventory of assets, or any other complex procedures.
Virginia Wrongful Death Damages
Under Virginia Code 8.01-52, the jury or the court, may award such damages as seem “fair and just.” The category of damages recoverable in a wrongful death case include:
1. Sorrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent;
2. Compensation for reasonably expected loss of (i) income of the decedent and (ii) services, protection, care and assistance provided by the decedent;
3. Expenses for the care, treatment and hospitalization of the decedent incident to the injury resulting in death;
4. Reasonable funeral expenses; and
5. Punitive damages may be recovered for willful or wanton conduct, or such recklessness as evinces a conscious disregard for the safety of others.
Damages under categories 3-5 must be specifically stated. Medical bills and funeral expenses have to apportioned among the creditors who rendered such services. Loss of income damages must be supported by expert witness testimony.
What Kinds of Cases Can be Wrongful Death Cases?
Wrongful death cases can come in the form of auto accident cases, nursing home negligence, medical malpractice, and product liability. There is no one-size-fits-all form of wrongful death action. A wrongful death case can be any death caused by someone else’s negligence or wrongdoing.
Virginia Wrongful Death Beneficiaries
Under Virginia Code § 8.01-53, the damages awarded in a wrongful death case are distributed
(1) First to the surviving spouse, children of the deceased and children of any deceased child of the deceased or
(2) If there is no one in the first category of beneficiary, then to the parents, brothers and sisters of the deceased and to any relative who is “primarily dependent” on the decedent for support or services AND is also a member of the same household as the decedent
There are other, more complex scenarios that can arise, but the above is the general order of wrongful death beneficiaries under Virginia law. A wrongful death beneficiary may renounce his interest in a wrongful death action.
Survival Action v. Wrongful Death
Most jurisdictions across the country recognize what are called survival actions. A survival action is a claim for a decedent’s pre-death pain and suffering and economic losses. It has nothing to do with beneficiaries’ grief or pain and suffering. In most jurisdictions, a plaintiff can recover damages under both a survival action theory and a wrongful death theory of recovery. However, Virginia is different. Under Virginia law, a plaintiff may allege both a survival action and a wrongful death but can only recover under one theory. A plaintiff can bring both claims before a jury because election between the two forms of recovery is only required when the factual record is fully developed. Centra Health, Inc. v. Mullins, 277 Va. 59, 670 S.E.2d 708 (2009).
What is the Statute of Limitations for Wrongful Death Actions
Generally speaking, and unless otherwise specified by Virginia statute, every action for personal injuries, whatever the theory of recovery, shall be brought within two years after the cause of action “accrues.” Va. Code Ann. § 8.01‐243.A. When is an action deemed to “accrue?” Under Va. Code Ann. § 8.01‐230, the right of action shall be deemed to accrue – and the prescribed limitation period begin to run – from the “date the injury is sustained” and not when the “resulting damage is discovered.” Id.
Virginia Code § 8.01-50 creates the right to bring a wrongful death action. Under Va. Code § 8.01-50(B), a wrongful death action has to be “brought by and in the name of the personal representative of such deceased person within the time limit specified in Va. Code § 8.01-244”. Va. Code §8.01-244(B) establishes a limitation period of two years.
Can a Wrongful Death Case Proceed Without All Beneficiaries?
Can a wrongful death case proceed without all beneficiaries? The answer is yes, but it is probably not a good idea to proceed with a wrongful death case without all beneficiaries on board with the lawsuit. Under Virginia law, beneficiaries can renounce their share in the proceeds of any wrongful death settlement or verdict. Practically speaking, having absent beneficiaries in a wrongful death case would be a bad idea because the impression it would make on the jury.
Why Hire An Experienced Wrongful Death Lawyer
Wrongful death cases are extremely complicated and expensive. Most potential clients do not realize that wrongful death cases generally require the testimony of an expert economist to calculate the decedent’s future lost wages. This calculation is not obtained by simply multiplying what the decedent would have earned by how many years he would have lived. Economist experts almost always have Ph.D. degrees in economics and use algorithms to reduce the future loss to present value. They also use government statistics to determine the decedent’s work-life. By the way, the defense will also have their own expert witnesses, whose job it is to refute what the plaintiff’s expert will say. Therefore, it is imperative to have an attorney who is experienced in navigating these issues.