Wrongful Death Lawyer in Virginia Beach, Portsmouth, & Chesapeake
Losing a loved one is always painful. If that death occurred as the result of someone else’s negligent actions the family or dependents of the deceased may be entitle to compensation under Virginia’s Wrongful Death Statute. Wrongful death in Virginia can occur as a result of car accidents, truck accidents, medical malpractice, workplace injuries or other such events. The wrongful death attorneys with the Jeff Brooke Team can help you with your wrongful death lawsuit.
Exactly who is entitled to compensation and how much in a Virginia wrongful death case depends on many factors including the makeup of the decedent’s family, the Virginia Code, and the jury or judge if a case goes to trial. Individuals eligible for compensation under a wrongful death suit may include the surviving spouse, children, grandchildren, parents or siblings of the deceased. A Virginia wrongful death attorney will be able to provide you with more detail on the complex legal issues surrounding a wrongful death suit.
Damages in Wrongful Death Lawsuits
In a civil legal action, the term damages refers to the amount of compensation that can be recovered. At The Jeff Brooke Team, a personal injury law firm in Virginia Beach, one of the essential questions our clients often ask is what compensation can be recovered if a wrongful death action is filed. There are a number of different factors that enter into the damages calculation.
Types of Compensation in a Wrongful Death Action
Under Virginia statutes, certain family members are entitled to file a wrongful death lawsuit when a person’s death is caused by the wrongful act, neglect, or default of another person. If the case goes to trial, damages will be awarded by either a jury or a judge.
The law provides that the judge or jury should award damages that are “fair and just.” The purpose of a wrongful death action is to compensate for different types of harm caused by the at-fault party. The damages in the lawsuit will be a compilation of those types of losses.
The first type of compensation includes losses experienced by the deceased person as the result of the act that caused the death, beginning when the act occurred until the time of death. For example, if the person died as the result of an auto accident, but the death was not immediate, this part of the compensation covers the period from the accident to the victim’s death. The damages would include:
- Hospital and medical expenses
- The deceased person’s pain and suffering
- The deceased person’s lost wages
- Funeral and burial expenses
The second type of compensation in a wrongful death case covers losses of the deceased person’s family members after the loved one’s death. These damages compensate family members for their own losses. The Virginia statute specifically provides that this compensation should include:
- Mental anguish and sorrow, including companionship, comfort, and guidance
- Expected loss of income and services, such as protection and care, of the deceased person
Since there may be multiple family members who suffered losses — such as the decedent’s spouse, parents, children, grandchildren, and siblings — the total compensation for these losses will take into account the losses of all family members.
There is an additional type of damages that may be awarded in very limited circumstances. Punitive damages may only be recovered if the death was the result of conduct that was willful or wanton or recklessness evidencing a conscious disregard for the safety of others. Unlike the other types of compensation, punitive damages are not intended to compensate the deceased person or family members for losses. The purpose is to punish the person who caused the death and set an example to deter others from similar conduct.
How Damages Are Calculated in a Wrongful Death Action
From a practical standpoint, calculating damages in a wrongful death case is very complex. It involves taking into account numerous factors and circumstances. Often, hiring an expert witness is necessary. The expert calculates the damages based on economic and other criteria and testifies in court if there is a trial.
The damages calculation includes some specific economic computations, such as the deceased person’s lifetime income, which takes into account details like career or profession, education, and age. Valuing the services the person would have contributed to the household is similarly based on economics, as well as the family’s situation. In addition, before a final number can be derived, the calculations have to be adjusted to take into account other economic factors like inflation.
The factors relating to mental anguish and sorrow are less economically based. Instead, they are determined based on the family circumstances and the nature of the relationship between the deceased person and family members. Considerations may include the length of a marriage and the specific kinds of kinds of love, help, and support the deceased person gave to the family.
Wrongful Death Lawsuits: Answers from a Wrongful Death Lawyer in Virginia Beach
When you’ve lost a loved one in an accident, grieving your loss and consoling your family members are all that’s on your mind, as it should be. But, if the accident was the result of someone else’s negligence, Virginia’s wrongful death law may entitle you and your family to recover monetary damages for your loss — and you have a limited amount of time to file. You can read on for answers to some basic questions about wrongful death actions from Jeff Brooke, an experienced auto accident lawyer in Virginia Beach.
What Is a Wrongful Death Action?
Wrongful death actions are a type of personal injury lawsuit. When a person loses his or her life because of someone else’s negligent actions, a wrongful death lawsuit can be filed by family members if allowed by the laws of the state where the death occurred. Virginia has a wrongful death statute that enables family members to file a wrongful death lawsuit. The law governs wrongful death lawsuits filed in Virginia.
The Virginia statute defines a wrongful death as a death“caused by the wrongful act, neglect, or default” of another person. The circumstances must be the type that would have supported a personal injury action by the deceased person had he or she survived. Wrongful death claims often result from car and truck accidents, but they can also arise from workplace accidents, medical malpractice, defective products, premises liability, hunting accidents and other firearm accidents, as well as many other types of situations.
The right to bring a wrongful death action is not open-ended. There is a statute of limitations, which specifies how long the deceased person’s family has to file a lawsuit. The period begins to run on the date of death and lasts for two years. At the end of two years, any action filed in court will be dismissed based on expiration of the statute of limitations. Because of the limit, if you lost a family member in a situation that may give rise to a wrongful death action, it is important to talk with a lawyer as soon as you are comfortable doing so.
Who Can File a Wrongful Death Lawsuit in Virginia?
The Virginia law is very specific about who is entitled to file a wrongful death claim. It sets priorities of entitlement. In large and blended families, the question of exactly which family members can file an action can be very complicated.
The right does not automatically belong to the beneficiaries of the decedent’s estate. Priorities under the statute are the same as inheritance rights under the state’s law of intestate succession, which means the heirs who would inherit in the absence of a will or estate plan. Those heirs sometimes will be different that the beneficiaries named in a will. The statutory order of priority is:
- Surviving spouse and children or grandchildren of the decedent
- Surviving parents and siblings of the decedent, or any relative who shared the decedent’s household and was a dependent of the decedent
- Any surviving family member who would inherit under Virginia’s intestacy laws
The ability to file a lawsuit for each category of relatives is triggered only if there is no one in the category of higher priority. However, it can get even more complicated: For example, if there is a surviving spouse but no children, the spouse and surviving parents may file a wrongful death claim together. However, if parents abandoned a child during childhood, they cannot file a claim or recover damages for wrongful death. Other rules apply in different situations.
The only way to be certain which family members have the right to bring a wrongful death action in Virginia is to talk with an experienced Virginia personal injury attorney who knows the law.
What Damages Can Be Recovered in a Virginia Wrongful Death Case?
The wrongful death statute in Virginia addresses what damages can be recovered in a wrongful death action. There are several different types. Some damages compensate the decedent’s estate, and some compensate family members.
The statute provides that the jury or court may award damages that“seem fair and just.” The law goes on to say that that a judge trying a case without a jury shall include economic damages such as: lost wages and benefits, including reasonably expected loss of income the decedent would have earned during his or her lifetime; medical and hospital expenses; and funeral and burial expenses.
In addition, the award may include non-economic damages, such as: sorrow and mental anguish; loss of companionship, care, guidance, and comfort; and, in some circumstances, even punitive damages. The statute specifies that punitive damages may be available for “willful or wanton conduct” or “recklessness as evinces a conscious disregard for the safety of others.”
What Is a Wrongful Death Case?
In personal injury law, there is a special type of lawsuit referred to as a wrongful death case. This type of action is governed by a specific state law in Virginia. But exactly what is a wrongful death case?
When Is a Death Considered To Be Wrongful?
Many states have specific laws concerning wrongful death actions. The laws vary from state to state. In Virginia, our statute provides that if a person, corporation or ship or vessel causes someone’s death, the estate of the deceased person can file a wrongful death lawsuit if:
- Death was caused by a wrongful act, negligence, or default, and
- The injured person would have been able to bring a lawsuit for damages if he or she had not died.
While wrongful death cases often result from car accidents, an action can arise in many other circumstances, including:
- Defective product situations;
- Injuries from unsafe premises, such as a slip and fall;
- Dog bite injuries;
- Boating accidents;
- Fire-related injuries;
- Amusement park injuries;
- Hunting accidents;
- Work-related injury;
- Intentionally inflicted harm, whether or not the conduct constitutes a crime.
In all of these cases, the two criteria noted above must be met for a wrongful death action to be available. There are other situations where the basis for a wrongful death case may exist as well.
What Is the Difference Between Criminal Conduct and Wrongful Death?
There are many circumstances under which specific conduct can lead to a criminal charge and also provide the basis for a wrongful death case. In those cases, the individual charged with the crime does not have to be found guilty of the crime in order to be liable for damages in a wrongful death case.
Criminal charges are based on different laws than wrongful death cases. A prosecutor for the state files criminal charges, which are tried in criminal court. Wrongful death lawsuits are filed under the wrongful death law. They are civil cases, brought by the estate of the deceased person and tried in civil court. The courts are different, the laws are different, and the standards of proof are different. The evidence presented in the two cases can also be substantially different.
The potential outcomes are also different in criminal and civil cases. In a criminal case, a convicted defendant faces possible prison time and fines. In a successful civil case, the outcome is financial compensation — or damages — awarded to the person who files the lawsuit.
An excellent example of this type of situation is the famous case of O.J. Simpson, who was charged with crimes in connection with the deaths of Nicole Brown Simpson and Ron Goldman. A jury in criminal court found him not guilty of those criminal charges.
After O.J. Simpson was acquitted of the criminal charges, the family of Ron Goldman filed a wrongful death action against him in civil court. In the civil case, the jury found O.J. Simpson legally responsible for the deaths. He was ordered by the court to pay total damages of $33.5 million to the families of his two victims. While the damages still have not been paid, the verdict in the wrongful death case stands today.
The results in the criminal and civil trials relating to O.J. Simpson’s conduct illustrate how a wrongful death action can lead to an award of compensation for a family on account of someone’s actions, even when the same person was acquitted of criminal charges. The cases demonstrate how civil liability in a wrongful death case is determined completely independent of the results in a criminal trial based on the same conduct.
Who Can File a Wrongful Death Action?
Under the Virginia statute, the personal representative of the deceased person’s estate is the only person who can file a wrongful death action. (The only exception is in the case of a fetal death, when the natural mother can file the action.) However, if the case is settled or won in court, the financial compensation is distributed to the beneficiaries of the deceased person, as specified in the statute, after estate expenses are paid.
Determining whether a wrongful death action can be filed in specific circumstances requires complicated analysis of the evidence surrounding the death. If you’ve lost a loved one in any kind of accident or incident, and you think someone else is at fault, it’s essential for you to talk with an experienced wrongful death attorney. Your lawyer will be able to assess the circumstances to determine whether a wrongful death lawsuit can be filed.
Importantly, there is a limit on how long the family has to file a wrongful death case. In Virginia, the action must be filed within two years of the date of death. If you wait beyond that amount of time, you will be unable to pursue a wrongful death claim.
Car Accident Wrongful Death: What Happens If a Passenger Dies?
When a wrongful death results from a car accident, often the at-fault driver was operating the other vehicle involved in the accident. But what happens if the person at fault was driving the car in which a passenger was riding?
The Virginia Wrongful Death Act has a specific provision that applies. It states that if a person riding in a motor vehicle as a guest dies as the result of negligent operation of the vehicle, the personal representative of the deceased person can file a wrongful death action against the driver.
Passenger situations can be extremely difficult and emotional. Often, the driver of the car is a family member or friend. In those cases, the family of the deceased passenger may be reluctant to file a wrongful death claim against the friend or other family member. It’s important to remember that in those cases, it is the insurance company who will pay the claim, not the individual himself or herself. While that still makes the situation difficult, talking with an experienced wrongful death attorney in those circumstances will be beneficial.
Damages in a Wrongful Death Case
Financial compensation in a wrongful death action is very different from the compensation that can be recovered in a personal injury lawsuit brought by the injured person. In a wrongful death case, damages include losses suffered by the family members who are entitled to sue under the state law.
Which Family Members Can Sue for Wrongful Death in Virginia?
Our law practice at The Jeff Brooke Team is dedicated to helping personal injury victims and their families. Tragically, some of our cases involve death of the victim, either in an accident or afterwards. In those cases, a lawsuit may be filed under Virginia’s Wrongful Death Act. One question our clients commonly ask is which family members can sue for wrongful death in the state. Below, we discuss the guidelines that generally apply to Virginia wrongful death cases and answer questions about which family members can sue.
What Is A Wrongful Death Lawsuit?
A wrongful death lawsuit is a court action filed after someone dies, when the death may have been caused by another person. In Virginia, wrongful death cases are governed by the provisions of a state statute.
The Wrongful Death Act provides that an action for damages can be brought if a “wrongful act, neglect or default” of another person or corporation caused the death, and if the injured person would have been able to file a personal injury action had he or she survived. The statute includes the right to bring an action for the wrongful death of an unborn child.
Wrongful death cases are often brought when someone dies in a car accident that was another person’s fault. But a wrongful death can occur as the result of other circumstances as well, including:
- Truck accidents;
- Premises accidents, including slip and fall cases;
- Product liability cases;
- Dog bite attacks.
Can Grandparents, Parents and Siblings Sue for Wrongful Death in Virginia?
The answer to the question “Which family members can sue for wrongful death?” is somewhat complicated — as many legal questions are. Under the statute, only one person is actually able to file the lawsuit: the personal representative of the deceased person. The only exception is in the case of an unborn child, where the natural mother can bring the lawsuit (with limited exceptions and qualifications).
A personal representative is the person named in a will to administer the estate of a deceased individual or the person appointed by the court to administer the estate if there is no will. State law determines who is eligible to apply to be appointed as the personal representative to administer an estate when someone dies without a will.
While it is the personal representative who actually files the wrongful death action, the statute designates beneficiaries who can share in the amount recovered in a wrongful death lawsuit. When a settlement or verdict is won, the personal representative first pays costs and attorney’s fees, and any hospital, medical, and funeral expenses. Then the remaining proceeds are distributed to the deceased person’s beneficiaries as specified in the statute.
In the Wrongful Death Act, distribution of damages is accomplished in an order of priority to beneficiaries of the deceased person. Only if there are no members in a designated group will members of the next group be entitled to recover. The priority order set by the statute is:
- Surviving spouse and children or grandchildren of the deceased individual;
- Surviving parents and siblings or a relative who shared the deceased person’s household and was a dependent of the deceased person;
- Any surviving family member entitled to inherit the estate under Virginia’s intestacy laws.
In other words: If the deceased person is survived by a spouse, children, or grandchildren (the first category above), then parents and siblings (the second category above) are not entitled to share in the proceeds of the wrongful death lawsuit. A grandparent will only be entitled to share if: 1) there is no one in the first category, and 2) the grandparent lived in the deceased person’s household and was a dependent or there is no one in the second category.
If there is a jury verdict in a wrongful death case, the verdict itself may specify the amount or proportion to be received by each of the beneficiaries. If the jury does not make the allocation, the judge must specify the distribution before entering judgment. The distribution is fixed either when the jury makes the specification or when judgment is entered, if the judge specifies the distribution
If there is a settlement agreement in a wrongful death case instead of a jury verdict, the settlement agreement itself will normally specify distribution of the proceeds. The statute gives the personal representative the authority to agree to a settlement of a claim but requires that damages be distributed as provided in the statute.
The rules described above are those that generally apply to a wrongful death action in Virginia. In any given case, the specific facts and circumstances will control distribution of the proceeds in a wrongful death action. There are various other detailed statutory provisions that may apply in an individual case.
Who Gets to Make a Claim for a Wrongful Death case?
A wrongful death claim is designed to compensate a decedent’s beneficiaries for the decedent’s medical bills, funeral expenses, loss of earnings, sorrow, grief and mental anguish. Note the precise language of the Virginia Wrongful Death Act: those that may claim are “beneficiaries.” They are not necessarily same as heirs who receive property under a will or even the estate itself.
Even local attorneys make this mistake and bring wrongful death suits on behalf of “The Estate of _______________.” This is not just bad lawyering but shows lack of understanding of how the Wrongful Death Act works.
A wrongful death claim is, in fact, something quite separate and apart from the estate. For example, a person has no chance during his life to “bequeath” any wrongful death claim to one of his or her heirs.
While there are interesting intersections between estate law and wrongful death law, it is important to recognize that they are two separate and distinct areas. Our office is fortunate in that it can rely on the firm’s trust and estate department to assist with issues like probate, qualifying as a wrongful death personal representative, and for estate taxation advice. In other matters, we have also set up special needs trusts to assist our wrongful death beneficiaries.
In actuality, the compensation scheme of the Wrongful Death Act is closest to what lawyers call the “intestate succession system.” This system determines who will receive a decedent’s property if he or she dies without a will. The Wrongful Death Act sets up a multilayered system. Generally, spouses and children are preferred beneficiaries. Later the law looks to brothers, sisters and parents. Even half siblings and adopted children have rights under the Wrongful Death Act. Any relative can be appointed a “personal representative” and lead the wrongful death case, although this will not necessarily increase that person’s share of any recovery.
In general, wrongful death claims can become quite complicated especially in the case of big or blended families. More importantly, a death claim can be one of the most significant and catastrophic type of legal cases which a family will ever have to contend.
3 Things to Know About Wrongful Death Cases in Virginia
Legal matters can frequently generate racy headlines, but combining “The Big Three” of Sex, Death and Taxes is unusual even when it comes to big cases. But, recent events in our local courts got us thinking about the interesting way that these topics can come together.
Let’s start at the end and work backwards. Death: Of course, there are all kinds of legal implications associated with death. In our practice, the most tragic consequence is a needless death where compensation is due—that is the so-called “wrongful death.” Ironically, under the old “common law” which we inherited from England, survivors had no right to sue for the death of a loved one. Fortunately, all of that changed with the enactment of the Virginia Wrongful Death Act, Section 8.01-50. In the unfortunate circumstance of a vehicle collision, fire, work-related accident, fall or other event which has brought about the death of a loved one, survivors can sue for medical bills, funeral expenses, lost earnings, sorrow, grief and mental anguish.
I have used the term “loved ones” loosely. In fact, people who may benefit from a wrongful death suit are generally in the same category as heirs who would receive property if the individual died without a will, that is, the surviving spouse and then close relatives.
This got us thinking about the same-sex marriage case now pending in federal court in which this office has been involved. Hence, the topic of Sex: As has been widely publicized, same-sex couples are suing for the right to marry. In many cases, they have already married in other states which permit same-sex marriage, yet Virginia law does not recognize the validity of the marriage. This raises an interesting question as to whether same-sex spouses would be able to sue for wrongful death. Under Virginia law, as matter now stands, the simple answer would seem to be no.
As the federal courts consider the legality of this prohibition, those with concerns about possible wrongful death cases should pay careful attention. Our society is evolving rapidly, but legal change can take much longer.
Which brings up the next topic: Taxes: Despite the name, wrongful death settlements are not subject to the so-called “death tax,” which is really a form of estate taxation. While IRS rules may tax certain items, like loss of earning capacity or punitive damages, so-called non-pecuniary damages like sorrow, grief and mental anguish are still beyond the reach of the taxman.
How Are Wrongful Death Settlements Paid Out in Virginia?
Losing a loved one in an accident is devastating to the victim’s family. Beyond the immeasurable mental anguish and emotional toll, the family often faces financial burdens as well. If someone else caused the accident, family members may be able to recover financial compensation under Virginia’s wrongful death statute. These cases present many questions, but one question frequently asked by our clients at The Jeff Brooke Team is how wrongful death settlements are paid out in Virginia.
Virginia Wrongful Death Statute
Everything about a wrongful death action is determined by Virginia’s state law, including who can file the lawsuit. The authority to bring an action or negotiate a settlement belongs to the personal representative of the victim’s estate. That person is either the executor named in a will or the administrator appointed by the court if there is no will. The personal representative files on behalf of the victim’s family members, as well as on behalf of the estate.
The statute also provides which family members can benefit from a wrongful death settlement or verdict, as well as what damages can be recovered. The statute sets a priority order for recovery of damages by family members:
- Surviving spouse and children or grandchildren of the deceased individual;
- Surviving parents and siblings or a relative who shared the deceased person’s household and was a dependent of the deceased person;
- Any surviving family member entitled to inherit the estate under Virginia’s intestacy laws.
Each group of family members is entitled to benefit from the settlement only if there are no members of the preceding group.
How Is Wrongful Death Compensation Determined?
Under the statute, the personal representative has the authority to negotiate a settlement on behalf of the estate and family members. It is always in the best interest of the estate and the family for the personal representative to retain an experienced Virginia wrongful death attorney to handle the negotiations with the at-fault party’s insurance company.
Your lawyer will know exactly what damages can be claimed and recovered, as well as who is entitled to the proceeds of any settlement. Whether the compensation is determined through settlement negotiations or by a court verdict, the terms of the settlement or verdict likely will specify exactly which family members receive the distribution, as well as which items of damages the compensation covers.
Court Approval of Wrongful Death Settlements
Before a wrongful death settlement is finalized, the statute requires the settlement to be approved by a Virginia court. If a lawsuit has been filed, the approval occurs within the action itself. If an action has not been filed, a separate petition must be filed with the court. Generally, the petition is filed by the personal representative or the insurance company for the at-fault party.
Court review of the settlement includes consideration of the allocation of benefits to family members entitled to receive benefits under the statute. If family members entitled to benefit do not agree with the distribution, they may object to the settlement allocation. If any objections are made, the court has the authority to determine the allocation in accordance with the statutory provisions relating to damages, which include:
- Funeral and burial costs and expenses;
- Hospital and medical expenses incurred prior to death;
- The deceased person’s lost wages and pain and suffering;
- Family members’ sorrow and mental anguish, including loss of comfort, guidance, and companionship;
- Family members’ expected loss of income and services, including as protection and care, of the deceased person;
- In limited circumstances, punitive damages.
After court approval of a wrongful death settlement, the personal representative is responsible for distributing the proceeds. The amounts due the estate and creditors of the estate are paid first. Then the family members’ allocations are distributed to the beneficiaries as provided by the settlement.
Is It Necessary to File a Lawsuit?
The personal representative is not legally required to file a wrongful death lawsuit to recover damages and negotiate a settlement. However, it often is necessary to file an action to preserve the right to recover damages from the at-fault party.
There is a two-year statute of limitations on filing a wrongful death action, which means that if an action is not filed within two years of the date of death, the right to recover will be lost. Settlement negotiations often can extend beyond two years.
Accident cases are often factually complicated and require extensive investigation to ascertain the cause and who is at fault. In those cases, filing a lawsuit preserves the rights of the estate and family members to recover under the wrongful death statute. If settlement negotiations fail to yield a satisfactory result, the case can proceed to trial for a jury to determine the amount of damages.
Preparing a lawsuit for filing requires considerable investigation and time. In any case, contacting a wrongful death attorney at the earliest possible time is the best way to ensure that the family’s rights under the statute are fully protected and pursued. As time passes, gathering evidence and investigating the case can become more difficult.
In any wrongful death case, it is not a good idea for a personal representative to attempt to negotiate a settlement with the insurance company. Getting a fair and full settlement requires understanding the wrongful death statute and knowing what damages the estate and family members can recover.
If the personal representative or a family member decides to negotiate directly with the insurance company, it can jeopardize the case and affect the amount of recovery. Having experienced legal counsel on your side is the only way to ensure that your family gets the full compensation they deserve if your loved one’s death was caused by another person’s negligence.
Contact A Wrongful Death Lawyer Today!
If you believe the death of a loved one was caused by the negligence or wrongful act of another you may be entitled to compensation under a wrongful death suit. Contact The Jeff Brooke Team for a free consultation. You can reach us at (757) 552-6055 or complete our Do I Have a Case form on this page. We are experienced in wrongful death cases in Virginia Beach and throughout Virginia. We’re here to help.
The Jeff Brooke Team has offices in Virginia Beach, Chesapeake, and Portsmouth. Our firm is devoted to providing the highest level of personal service, and professional legal counsel to those who have been injured in an accident. We are dedicated to helping those who have suffered serious and catastrophic injuries as a result of someone else’s negligent, and careless actions. Speak with an experienced personal injury lawyer today.