Each state has its own laws governing wrongful death claims. In this article, we'll look at West Virginia's wrongful death rules and discuss some of the ways in which these rules might apply to an actual lawsuit filed in the state.
Wrongful Death in West Virginia
A wrongful death claim is a civil lawsuit that seeks damages when one person's death is the fault of another party. In West Virginia, a wrongful death claim follows similar rules as personal injury claims -- but there are also key differences.
One way to think of a wrongful death claim is as a personal injury lawsuit that can no longer be brought by the injured person, because he or she has died. Instead, the deceased person's estate may bring the claim to court on the deceased person's behalf and seek many of the same types of compensation that the deceased person could have pursued in court if he or she had lived. Wrongful death claims also allow family members to receive compensation for certain losses they suffer when a loved one dies.
A wrongful death claim is a civil lawsuit. In West Virginia, such a claim may be brought in civil court even if the death at the heart of the claim is also the subject of a criminal case. There are two reasons the personal representative of a deceased person's estate might want to file a wrongful death claim even if a criminal claim is also going forward. First, the wrongful death case can be brought by the estate directly; a criminal case is filed by the state. Second, a wrongful death case allows the estate and survivors to seek compensation for their losses directly, in the form of monetary damages.
Who May File a West Virginia Wrongful Death Claim?
West Virginia law lets the personal representative of an estate bring a wrongful death claim to court. If damages are awarded in the case, many surviving family members may be eligible to receive a share of the damages under West Virginia's wrongful death law, which can be found at West Virginia Code section 55-7-6.
Family members who may receive compensation via a wrongful death case in West Virginia include:
- the surviving spouse
- the children, stepchildren, and adopted children
- parents and siblings, and
- any family members who were financially dependent on the deceased person when the death occurred.
Damages in West Virginia Wrongful Death Claims
Several different categories of loss may be compensated by a wrongful death claim. Damages available to the family members of the deceased include payments for:
- sorrow, mental anguish, and solace; and
- loss of society, companionship, comfort, guidance, kindly offices, and advice.
Other damages available in a wrongful death case include compensation for monetary losses, including:
- medical bills related to the deceased person's last illness or injury
- funeral and burial expenses
- compensation for lost wages and benefits, including the reasonable expected value of wages and benefits the deceased would have earned if he or she had lived, and
- compensation for lost or damaged property.
Learn more about Damages in a Personal Injury Case.
Time Limits on West Virginia Wrongful Death Claims
The personal representative of a deceased person's estate has two years in which to file a wrongful death claim in a West Virginia court. If the case is not filed within two years, the court may dismiss any filing without a hearing.
Typically, the two-year window for filing a wrongful death claim begins to run on the date of death. However, since certain exceptions apply in some cases, it is wise to discuss a potential claim with an experienced attorney as soon as possible to ensure all deadlines are met.
Comparative Fault and Wrongful Death in West Virginia
West Virginia uses a modified comparative fault rule to resolve cases in which an injured person is partly at fault for the injuries. This rule also applies to wrongful death cases in which the deceased person may have been partly responsible for the circumstances that led to the death. Under West Virginia's comparative fault rule, the estate cannot recover damages in a wrongful death case if the deceased person was 50 percent or more at fault.
Here is an example of West Virginia's comparative fault rule in action. Suppose that a pedestrian is crossing a West Virginia street when he is hit by a car. The driver of the car ran a red light, but the pedestrian was looking at his cell phone as he crossed the street, instead of watching traffic.
At trial, the judge or jury decides that the pedestrian was 30 percent at fault, and the driver was 70 percent at fault. They also decide that the total damages in the case equal $100,000. Under West Virginia's comparative fault rule, the pedestrian's estate can recover $70,000 in damages. This equals the $100,000 total, minus $30,000 representing the 30 percent of fault assigned to the pedestrian. If the pedestrian had been found to be 50 percent or more at fault, however, the estate would have been barred from collecting any damages at all.