How can a Lawyer Help Families in Wrongful Death Cases?
The sudden and unexpected loss of a loved one can be a devastating and traumatic event for a family. Their world could be completely shattered when a catastrophic event, such as a car accident, takes away a loved one who could have also been the financial support for the family. In Virginia, the heirs of those killed as a result of the carelessness or negligence of others are entitled to receive compensation to make up for that financial loss, although it will never be able to satisfy the emotional loss.
The Virginia wrongful death lawyers at Anchor Legal Group, PLLC can assist families during this difficult time. Our lawyers will help ensure that a devastating loss does not have to lead to financial ruin.
What is Wrongful Death?
The Commonwealth of Virginia defines wrongful death in §8.01-50 as: The death of a person caused by the wrongful act, neglect, or default of any person or corporation. The law elaborates that the death must be caused by an incident that could be considered a personal injury case had the victim survived. Virginia law also permits a pregnant woman to file a wrongful death lawsuit over the loss of her unborn child.
Which Incidents can Lead to Wrongful Death?
There are several incidents that, if horrific enough, can lead to the unfortunate death of one or more victims. These incidents are traditionally the cause of severe injuries, but in these instances, they are so violent that they result in someone’s death. These incidents include the following:
- Car accidents. There are multiple reasons why these types of accidents occur, from distracted driving, to aggressive driving, to drunk driving. Depending on the circumstances of the accident, it could result in the death of other drivers.
- Pedestrian accidents. When a person is walking along a road and they are hit by a moving vehicle, the impact can be so great that it could cause fatal injuries.
- Slip and fall accidents. If the owner of a business or property fails to properly maintain the grounds, making it unsafe for people to traverse and they fall because of that negligence, the victims can sue the owner for their injuries. If the fall is so catastrophic that it results in a person’s death, the responsible party is still liable.
- Drowning. When a person drowns in a swimming pool not managed by lifeguards or not properly secured, that could lead to a lawsuit. Another lawsuit can stem from public beaches that the state or local municipality failed to supervise at the appropriate times.
- Assault and battery. When a physical assault by one person on another results in the death of the victim, it can lead to a lawsuit arguing that the aggressor’s actions caused the victim’s death.
- Elder abuse or neglect. This category usually applies to officials working in nursing homes and doctors who care for senior citizens. In nursing homes, a caregiver may fail to provide the correct medication or ignore a patient for long periods, leading to a person’s death.
- Child abuse and neglect. Similar to senior abuse, this covers those who are responsible for the care of a child, including parents, guardians, teachers, and foster families. If that individual physically attacks a child or mistreats them in such a way that leads to that child’s death, it can trigger a wrongful death claim.
- Medical malpractice. When a health care professional provides treatment that violates the basic medical code of conduct and leads to the death of a victim, family members are entitled to seek compensation from those individuals for the loss of their family member.
These incidents can lead to the sudden and unfortunate death of a loved one and cause heartache for those left behind. An experienced lawyer can help families move forward.
Who can File a Wrongful Death Lawsuit?
Under the Virginia Wrongful Death Statute, the executor of the victim’s estate can file a wrongful death lawsuit, assuming the will has appointed that person. The statute also clarifies that the spouse and children can claim damages, as can adopted children and stepchildren. Others who are eligible also include family members who are financially dependent on the deceased, such as parents, siblings, and other relatives. If the person has no spouse or offspring, their parents and siblings are entitled to damages.
If there are no family members available, those eligible to file a wrongful death claim include individuals covered by the deceased person’s will and those who would otherwise be eligible to inherit under Virginia estate law.
What are the Types of Compensation Received in a Wrongful Death Lawsuit?
The unexpected death of someone can cause significant financial distress in the lives of the people that person cared about. It could leave them struggling to handle expenses for which they were not prepared to pay, such as funeral costs. They may also suffer a loss of income because that person was making a portion of the family’s income.
A wrongful death lawsuit can help those individuals by giving them a way to recoup those losses and not find themselves in a financial dilemma because of their tragic loss. Virginia law allows them to receive compensation for a few different categories. They include the following:
- Medical bills. In many cases, a victim may not die immediately after an accident takes place. They still require medical treatment as doctors attempt to save their life. Those procedures result in medical bills for which family members can receive compensation.
- Reimbursement for lost income. The victim could have been working at the time of their death, meaning the family will no longer enjoy that income. As part of a wrongful death lawsuit, the family can sue to receive a reimbursement for that loss of income.
- Funeral expenses. No one expects to have to pay for a funeral, especially when a death occurs suddenly because of a major accident. The family could be struggling to gather funds to pay for a funeral. It is an expense for which the family was not prepared. They can receive help in that area as a result of the lawsuit.
- Pain and suffering. This category is less specific but goes toward the level of emotional loss a family is suffering. Although an award for pain and suffering cannot replace the loss of a loved one, it can help ensure the future of their family.
- Loss of companionship or consortium. This compensates a spouse for losing their partner in life and now having to move forward without them. The money cannot serve as a replacement, but it can help the loved one move on without having to worry about their finances for the immediate future.
- Punitive damages. This is an expense that is meant to punish the actions of another. In Virginia, a case warrants punitive damages if the liable party’s actions were so willful or extremely reckless that it caused the death of another.
How are Damages Calculated in a Wrongful Death Lawsuit?
Virginia uses a complex calculation to determine the proper amount to award a family for their sudden loss. The Commonwealth does not place any cap on the damages that they can receive because of a wrongful death. The only exception to that provision is if the defendant is a Virginia sheriff or deputy.
Which Factors Affect the Value of a Wrongful Death Claim?
The family of the deceased are entitled to collect damages based on the previous factors; however, there is no guarantee that they will receive this compensation. There are several factors that impact the amount of compensation the heirs will receive. Those factors are as follows:
- Degree of damages. The amount of compensation that a liable person will have to pay will depend on the legacy left behind. If the victim is single with no children, the amount will be less than if the person had a family.
- Fault and liability. To receive damages, the family must prove by a preponderance of the evidence that the plaintiff bears 100 percent of the responsibility for the person’s death. The Commonwealth follows a pure contributory negligence rule, meaning if the plaintiff cannot prove that the defendant is 100 percent responsible, they will not receive any compensation.
- Insurance available. There must be a source from which to get the money. If the defendant does not have any insurance in place to pay for the damages or any assets available, the family will not be able to collect any compensation.
What is the Time Allowed to File a Wrongful Death Lawsuit?
Family members of wrongful death victims have two years from the death of the person to file their lawsuit. If they fail to file their case within this two-year window, a judge will have no choice but to dismiss the case outright. If a case is filed within the window but is dismissed, the countdown to the expiration will not stop while that case is pending. It will resume once the case is dismissed, giving representatives for the deceased whatever time is left on the two-year limit to file a second case.
There are some exceptions to the two-year deadline. The first is if there is a minor involved who is underage at the time of the death. The two-year countdown begins when the minor turns 18. Virginia also has the Discovery Law, in that the time limit begins when a person discovers that someone has died, even it has been a few days since that took place.
Are There Survivor Laws in Virginia?
Unlike some neighboring states, Virginia does not have a survivorship law. In other words, a family cannot file a wrongful death lawsuit on behalf of the deceased person. They can only claim damages on behalf of themselves. There is one exception permitted under Virginia law. If a person in injured because of the negligence of others and they die of unrelated causes, the person’s family can file a personal injury lawsuit on the victim’s behalf. They can sue to recover economic damages, pain and suffering, medical bills, and funeral costs on behalf of the victim. However, the family cannot file a wrongful death suit because the accident was not the cause of their death.
What is the Process of Filing a Wrongful Death Lawsuit?
There are several steps that must take place before the actual filing of a wrongful death lawsuit. These are necessary steps that will increase the likelihood of securing the outcome the family desires. As with all matters that involve the legal system, the first step in the process involves the following:
- Hire a lawyer. Before embarking on any legal effort, it always makes sense to hire a lawyer with experience in the area. They know the procedures and what needs to be done and can help families navigate through what could be a long and complicated process.
- Gather evidence. Once a lawyer has been retained, they will speak with the family about the victim to get an idea about the accident. They will then gather evidence about the accident to determine what caused the death. That will include speaking with witnesses, surveying the scene, and reviewing any documentation available about the accident.
- Assess the damages. When filing a wrongful death lawsuit, the plaintiffs will be seeking a certain amount. There needs to be a reason why the family arrived at that amount. The family must be prepared to present medical bills, as well as recent paychecks of the deceased to justify the amount that they are seeking.
- Submit the claim. Once the family and their lawyer have arrived at an amount that they believe is fair and justified, the claim will be filed with the appropriate entity. In most cases, that entity will be the defense’s insurance company.