Wrongful Death Frequently Asked Questions

Losing a loved one is never easy. But grieving the loss of someone when their death was caused by someone else’s negligence can be extremely painful. Nothing you can do will bring your loved one back. However, filing a wrongful death claim can help to hold the other party accountable for their actions, provide you with the funds necessary to move forward with your life, and hopefully help to prevent this avoidable tragedy from reoccurring.

There is much to understand about filing a lawsuit for wrongful death. Here are some frequently asked questions.

Q: What is wrongful death?

A: A wrongful death occurs when someone causes the death of another person through either negligence or an intentional act. In order to be able to file a claim for wrongful death, the circumstances surrounding your loved one’s death must have been of the nature that they would have had a claim for personal injury if they had survived.

Q: What is a wrongful death lawsuit?

A: A wrongful death lawsuit is essentially a personal injury claim that is brought on behalf of the injured individual who is no longer with us to bring the claim themselves. One or more “statutory beneficiaries” must file the wrongful death claim. A beneficiary is a person or legal entity who you designate to receive your assets after you pass.

For instance, when you purchase a life insurance policy you will appoint a beneficiary. Then when you pass, this person or legal entity you appointed will receive payment from your insurance policy.

Q: What are common causes of wrongful death?

A: Unfortunately, there are many causes of wrongful death. Some of the most common causes include:

• Product defects;
• Premises accidents;
• Occupational hazards/exposure;
• Auto accidents (car, truck, motorcycle, etc.);
• Birth injuries;
• Abuse or neglect at assisted living or nursing home facilities;
• Criminal actions such as shootings or stabbings; and
• Medical malpractice.

One of the most common types of injuries that results in wrongful death is traumatic brain injury. Any of the above mentioned common causes could result in head trauma, such as a concussion, and lead to traumatic brain injury and wrongful death.

Q: Who can file a wrongful death lawsuit?

A: Not just anyone can file a wrongful death lawsuit. Surviving family members must be the ones to bring a suit for wrongful death. Commonly, a personal representative of the deceased’s estate will be appointed and responsible for such a claim.

It’s also important to understand that not every death constitutes a wrongful death – even when committed by accident. The case in question must meet specific guidelines in order for it to be eligible.

Under Virginia state law, one or more statutory beneficiaries must file a wrongful death claim. Statutory beneficiaries include family members or those who are considered dependents of the deceased individual. Such individuals include:

• A surviving spouse;
• Surviving children or grandchildren;
• Surviving parents and siblings;
• A relative of the deceased person’s who is a dependent of theirs and shares the same household; or
• Any surviving family members who are entitled to inherit the decedent’s property under state intestacy laws (default laws which govern estates when a will or estate plan does not exist).

There is a specific order under which Virginia allows these surviving individuals to file a wrongful death claim. The initial right to file a claim belongs to the deceased’s surviving spouse, children, and grandchildren. However, if none of these individuals survive the deceased, the next in line to bring a wrongful death claim include surviving parents, siblings, and dependents. Again, if none of these individuals outlive the deceased, the right to file for wrongful death goes to whoever is entitled to inherit next under the state’s estate laws.

When there are no children, but only a surviving spouse and surviving parent(s), both the spouse and the parent(s) can file the claim together. However, it’s important to note that if the parent(s) abandoned the deceased when the deceased was a child, Virginia prevents them from filing a wrongful death claim or recovering damages through such a claim.

Q: What types of damages are available in a wrongful death suit?

A: Damages may be available in a wrongful death claim in order to compensate for the losses incurred. These damages are monetary, meaning that money would be awarded. Under Virginia law, damages for a wrongful death claim may include:

• Medical expenses for the deceased prior to their death;
• Reasonable funeral and burial expenses;
• The value of the decedent’s lost wages and benefits, including those that could have reasonably been expected had they lived;
• Loss of the deceased’s care, companionship, comfort, society, advice, guidance, and all of the other things that the deceased has done in their work or role within the family, known simply as “kindly offices”;
• Mental anguish and suffering; and
• Punitive damages, which are not intended to compensate the family but rather to punish the defendant when they acted with “willful or wanton” conduct towards the deceased. Willful or wanton conduct is that which is deliberate and intended to cause harm or shows conscious disregard for the safety of others or their property.

Under the state statute, the jury or judge has the freedom to award such damages as are considered “fair and just.”

Q: How are wrongful death damages calculated?

A: Damages for wrongful death are calculated by first adding up monetary damages related to the death of the deceased. This then goes on to become the basis by which damages for pain and suffering are determined. Then your attorney as well as the defendant’s insurance company will use one of two methods (the multiplier method or the per diem method) to determine the actual amount.

Just because one can recover all of the above damages in a wrongful death lawsuit does not mean that they will recover all of them. There are other things that can impact the value of a wrongful death lawsuit. Such elements include:

• The degree of damages suffered: The court looks at things such as whether the deceased had dependents, their occupation and income, etc.
• The degree of fault and liability of the defendant: Virginia is a pure contributory negligence rule state. This means that in order for a defendant to be held liable the plaintiff must have not contributed whatsoever to their injuries.
• Available insurance: The court will look at the amount of compensation that is available under the defendant’s insurance policy as well as their personal assets. Without an insurance policy and assets, loved ones may never be able to recover anything – even if they would be entitled to it.

Q: How are wrongful death settlements paid out?

A: When the at-fault party’s insurance company pays, they send a check to the wrongful death attorney(s) involved. The attorney will then deduct their fees before paying the remainder to the plaintiffs.

It’s important to differentiate between the plaintiff’s and the deceased’s estate. No money will be given to the estate. It’s also notable that wrongful death settlements are not subject to income, inheritance, or estate taxes.

Q: What is needed to prove wrongful death?

A: In order to prove wrongful death, the elements that must be proven are the same as those that would be required had the deceased survived:

1. Negligence. The deceased’s death was caused in part or in whole by the negligence, careless, or reckless actions of the defendant.
2. Breach of duty. The defendant must have owed a duty to the deceased and failed to uphold their duty as a result of their negligent actions.
   For instance, a lifeguard has a duty to watch the pool in order to prevent injury or death. If a lifeguard is texting on their phone, the lifeguard has breached this duty.
3. Causation. The defendant’s negligence must have caused the death of the deceased.
4. Damages. The deceased’s death results in quantifiable damages as previously mentioned (medical expenses, funeral expenses, loss of income, etc.)

To prove all four elements will require sufficient evidence.

Q: How can a wrongful death attorney help?

A: As you can likely see, there are many different steps and factors that go into proving a wrongful death claim. From talking to experts and witnesses to understanding the relevant laws and strategizing, an experienced wrongful death attorney can help.

With potential mediation, settlements, and a trial, wrongful death attorneys can help to advise and inform every step of the way. They will help to establish a strategy for your case based upon the facts and evidence.

Q: How long do I have to file a wrongful death suit?

A: Unfortunately, you have a limited amount of time to file a claim for wrongful death. A wrongful death claim must be filed within two years of the date of the deceased individual’s death. If someone misses this period of time, known as the “statute of limitations,” they are banned from bringing the claim later on.

Q: When should I contact a wrongful death attorney?

A: Since there is a statute of limitations for when you are legally allowed to file a wrongful death claim, it’s important that you contact a wrongful death attorney as soon as possible. The sooner you contact a lawyer and file a claim, the better chance you have of preserving any and all evidence.