Articles, Wrongful Death
Virginia Wrongful Death Statute: A Guide
You’re looking at the Virginia wrongful death statute because you need to know when and how to file a wrongful death claim, who can file it and what you can recover. The Virginia wrongful death statute is a legal process for families to get justice and compensation when a loved one dies because of someone else’s negligence or wrongdoing. This article will walk you through the process, from the statutory framework and Virginia wrongful death statute of limitations to the types of damages you can get.
If you have suffered injuries because of someone else’s negligence, Sharif Gray at Broughton Injury Law can help. We have won millions of dollars in verdicts and settlements. Call Sharif at (804) 915-1611 or contact him online to schedule a free consultation. We will get justice for you.
Quick Facts
- In Virginia, wrongful death claims must be filed by the personal representative of the estate and beneficiaries can include a surviving spouse, certain family members or a partnership plaintiff if the deceased was a business partner.
- The statute of limitations for filing wrongful death claims in Virginia is 2 years from the date of death and there are specific steps to follow including gathering evidence and proving duty, breach, causation and damages.
- Damages in a wrongful death claim include economic losses like medical and funeral expenses and lost income and non-economic damages like emotional distress. Choose an attorney with wrongful death experience for your case.
What is Wrongful Death in Virginia
Each state has its own laws and requirements for wrongful death claims but the underlying principles are the same. In Virginia, wrongful death means any death caused by the negligence or wrongdoing of another person or entity. The claim can be brought by the personal representative of the deceased person’s estate which can include a corporate or partnership plaintiff if the deceased was a partner or shareholder in a business.
The types of fatal incidents that can lead to a wrongful death claim are many, from car accidents to medical malpractice to workplace accidents.
Definition of Wrongful Death
At its simplest, the definition of wrongful death in Virginia is any death caused by the wrongful act, neglect or default of another. This includes situations where another person’s negligence, recklessness or intentional wrongdoing causes the death of a person and could result in a claim for damages. Unlike other types of homicide, wrongful death in Virginia is a civil matter and is about getting compensation for the loss, so it’s a type of civil case.
Examples of this include motor vehicle accidents, slip-and-falls and workplace accidents.
Who Can File a Wrongful Death Claim?
In wrongful death cases the right to file a claim belongs to the statutory beneficiaries of the deceased which include the surviving spouse and certain family members. If a personal representative has been appointed they too can file the lawsuit. This person is usually the executor or administrator of the estate and may charge service fees for their services.
As the representative they have the right to settle any claim for damages under the law including claims under a liability insurance policy with the court’s approval.
Types of Fatal Incidents
In Virginia, the following types of incidents can lead to a wrongful death claim:
- Car accidents
- Motorcycle accidents
- Truck accidents
- Medical malpractice
If the deceased was a business partner, a partnership plaintiff may be involved if the wrongful death claim is related to the business.
These are just a few of the most common types of wrongful death claims in the state so road safety and professional accountability is key.
Wrongful Death Statutes
Understanding the wrongful death statutes in Virginia can be confusing. The statutes are found in Virginia Code Section 8.01-53 which states the claim can be brought by the personal representative of the deceased person’s estate.
Also be aware of the statute of limitations in Virginia which is 2 years from the date of death.
Deadline to File
In Virginia, as with any legal matter, time is of the essence. The statute of limitations to file a wrongful death claim is 2 years from the date of the victim’s death. This means the clock starts ticking from the moment the person dies. There is no exception to this rule and if you file after the deadline the claim will be barred.
How to File a Wrongful Death Lawsuit
Filing a wrongful death lawsuit involves:
- Gathering evidence such as the death certificate, coroner’s report and medical records of the deceased.
- Identifying the executor of the deceased’s estate.
- Proving the 4 elements of a wrongful death claim: duty, breach, causation and damages.
Once the lawsuit is filed the parties need to be formally served which means bringing the case to the court with jurisdiction.
Damages and Awards in Wrongful Death Cases
After a wrongful death the family of the deceased is left with financial and emotional hardship. In these cases damages and compensation helps to ease the financial burden. Damages are usually divided into two categories: economic and non-economic damages.
To calculate these damages you must calculate the deceased’s financial contributions to the family and the financial hardship to family members. Non-economic damages such as emotional distress, loss of companionship and other subjective losses can be much harder to calculate.
Economic vs Non-Economic Damages
In wrongful death cases understanding the difference between economic and non-economic damages is key. Economic damages are quantifiable financial losses such as medical bills, loss of financial support, and funeral costs. These are easier to calculate as they are specific and measurable.
Non-economic damages are more subjective non-monetary losses such as pain, emotional distress and loss of enjoyment of life.
Financial Impact
Calculating the financial impact of a wrongful death case involves looking at the deceased’s past and potential future earnings. Key factors are medical costs related to the death, potential punitive damages and the age, income and education of the deceased.
One often overlooked factor is the life expectancy of the deceased which plays a big role in the calculation of future damages especially in the loss of lifetime earnings and earning capacity.
Get Representation
Having the right legal representation is crucial in a wrongful death case. An experienced attorney can guide, support and represent you through the legal process, seeking justice and compensation for the family.
From choosing the right attorney for your case to understanding the role of an attorney in a wrongful death lawsuit legal support is a big part of winning a wrongful death claim.
Choosing the Right Attorney for Your Case
Choosing the right attorney for a wrongful death case is a big decision. You need to find a lawyer with experience in handling wrongful death cases and has a clear understanding of potential damages including medical expenses, funeral costs, lost future income, loss of companionship and emotional pain. The attorney’s communication style also plays a big role in building trust and explaining complex legal matters.
Be aware of the signs that an attorney may not be right for your wrongful death case such as lack of experience in wrongful death cases, poor communication and a fee structure that is not proportionate to the expected recovery in the case.
The Attorney’s Role in a Wrongful Death Lawsuit
The role of an attorney in a wrongful death lawsuit is many fold. They gather evidence, negotiate with insurance companies and represent the plaintiff in court. To gather evidence attorneys collect documents, get eyewitness testimony, consult expert witnesses and review autopsy reports. They also negotiate with insurance companies to get a fair settlement that provides compensation to the victim’s family for their pain.
In court they present arguments, evidence and witnesses to the judge or jury after gathering necessary documents from the clerk’s office for their court date.
The Court Process
Understanding the court process is a big part of any wrongful death case. The General District Court in Virginia is a lower court that handles simpler cases without juries while the Circuit Court is a higher trial court that handles more complex cases and provides for jury trials.
After a lawsuit is filed and the filing fee is paid the next step is serving the defendant and selecting a return date for the case which must be within 60 days of service.
General District Court vs. Circuit Court
The General District Court and the Circuit Court in Virginia have different roles. The General District Court with its civil division handles a variety of cases including civil and criminal cases such as traffic violations, misdemeanors and civil cases with smaller claims. The Circuit Court handles bigger cases such as most civil cases with claims over $25,000, felonies, bigger civil cases and appeals from the General District Court.
Note that the jurisdiction of these courts are different, the General District Court also known as small claims court or small claims division has a limit of $50,000 for personal injury cases and specific personal property valued, while the Circuit Court has no jurisdictional limit.
Pre-Trial and Trial Process
The pre-trial and trial process in a wrongful death case is complicated and requires attention to detail. The pre-trial phase involves determining the order of succession, gathering evidence of damages and filing the case within the statute of limitations. During the discovery phase both parties exchange information and evidence related to the case which can include written interrogatories, document requests and depositions.
Pre-trial motions are used to address the lawsuit with a typical motion being a demurrer as per Virginia Code § 8.01-273. During the trial both parties present their arguments, evidence and witnesses to the judge or jury.
Settling a Wrongful Death Claim
Settling a wrongful death claim instead of going to trial can have multiple benefits such as speeding up the compensation process, avoiding a long trial and reducing costs. The negotiation process is key to getting a settlement with attorneys navigating through legal complexities, determining compensation and advocating for their clients.
The settlement amount is referred to as a money judgment and is determined by various factors and can range from $500,000 to $1 million or more or less.
Benefits of Settlement
Settling a wrongful death claim has financial and emotional benefits. The settlement process can speed up the compensation process, avoid a long trial process and get the compensation to the statutory beneficiaries sooner. The plaintiff has the right to decide whether to accept the settlement or go forward with additional legal action and have more control over the outcome of their case.
On an emotional level settling a wrongful death claim allows for closure and for the beneficiaries to move on with their lives.
Negotiation Process
Negotiating a wrongful death settlement is a complicated process that requires expertise and experience. Attorneys play a big role in this process including:
- Determining damages
- Knowing the specific laws and regulations governing wrongful death claims
- Advocating for their clients.
The outcome of the negotiation is dependent on the quality of the evidence and understanding of the settlement terms. The duration of the negotiation process can vary but typically takes a few months to several years.
Special Considerations in Wrongful Death Cases
There are several special considerations in wrongful death cases. Virginia wrongful death cases can have multiple defendants and the allocation of liability is determined by the principles of joint and several liability meaning any wrongdoer found liable can be held responsible for the full compensation.
Multiple Defendants and Shared Liability
When there are multiple defendants in a wrongful death case, allocating liability can get complicated. In Virginia any defendant found at fault can be held liable for the entire damages and it creates complexity in allocating liability and determining the right compensation for the wrongful death. The damages are distributed among the beneficiaries based on the percentage of loss suffered by each.
The insurance company may offer a settlement based on the shared liability among the defendants.
Proving Fault
Proving fault in a wrongful death case is one of the hardest parts of the process. To prove negligence you must show that the defendant owed a duty of care to the deceased, that duty was breached and that the breach caused the wrongful death. Proving causation or a direct link between the defendant’s actions and the death of the individual is crucial in showing that the wrongful death was caused by the defendant’s breach of duty.
To prove fault you may need to present various evidence such as medical records, witness testimony, expert opinions and financial documents.
Conclusion
In summary, filing a wrongful death claim in Virginia requires knowledge of the legal process from the basics of wrongful death and the laws governing these claims to the damages and compensation, the court system and the importance of legal representation. It’s a tough process but with the right knowledge and legal help justice can be achieved for the deceased and their loved ones.
FAQs
What is the burden of proof for wrongful death?
In wrongful death cases the burden of proof is on the plaintiff who must prove liability by a preponderance of the evidence not beyond a reasonable doubt like in criminal cases. This means the plaintiff must show it is more likely than not the defendant is responsible.
What are the damages for wrongful death?
Damages for wrongful death include compensation for lost financial support and suffering. Juries consider factors such as the person’s income and the level of family dependence before awarding damages.
What’s the difference between homicide and wrongful death?
The main difference between homicide and wrongful death is that wrongful death is a civil case while homicide is a criminal case. Wrongful death cannot result in incarceration (2022).
What’s the difference between wrongful death and negligence?
Wrongful death is a civil action for injuries or damages resulting in another’s death while negligence is one type of liability in wrongful death cases although it’s the most common.
Where do I go to see if someone died in Virginia?
2001 Maywill Street, Suite # 101 Richmond, VA 23230 Monday – Friday 7:00am – 4:30pm.
“We Get Justice For Injured People, and We Love What We Do”
Sharif Gray works as a trial lawyer at Broughton Injury Law. Sharif has proven that he can and will get results in court, and the insurance companies know that. If you have suffered injuries because of someone else’s negligence, we can help.
Sharif is committed to trying cases well. Because of that, he does not handle hundreds of cases at a time. He is selective in the cases he takes so he can get justice for the people he represents. In every case, he has three goals:
- Hold the responsible corporation or individual fully accountable.
- Make the community safer, so others are not also harmed.
- Compensation that recognizes the full and fair value of what was taken from your health and quality of life.
Sharif loves what he does, and he is proud of the positive impact he has had and will continue to have on the people he represents and the community he lives in.
If Sharif can be of help to you, please do not hesitate to call him at (804) 915-1611 or contact him online to schedule a free consultation. We will get justice for you.
