Like other states, Virginia has its own set of wrongful death laws that permit a deceased person's survivors to file a lawsuit if the death was the result of another party's accidental or intentional act. In this article, we'll look at a few key parts of these laws, including the state's definition of "wrongful death," who is eligible to file a Virginia wrongful death claim, the time limit for filing this kind of lawsuit, and the types of damages that could be available if the claim succeeds.
Virginia law defines a "wrongful death" as a death that is "caused by the wrongful act, neglect, or default" of another party. The circumstances of the death must be the kind that would have allowed the person to pursue a personal injury claim had he or she lived. Because the injured person is no longer able to file a claim on his or her own behalf, someone else must step in and file the claim. (Va. Code § 8.01-50 (2021).)
As with personal injury cases in general, many types of events can be the basis of a wrongful death lawsuit, including negligence-based incidents (such as car accidents), medical malpractice, and intentional acts—including crimes. In fact, Virginia's wrongful death law specifies that a wrongful death claim can proceed even if the act that caused the death was a felony.
Also as in other types of personal injury lawsuits, the defendant's liability in a successful wrongful death case is expressed solely in terms of money damages that the court orders the defendant to pay to the deceased person's survivors or estate. This is one major difference between a wrongful death lawsuit and a criminal homicide case, where a conviction can result in jail or prison time, fines paid to the state, probation, and other penalties.
Another big difference between a criminal prosecution for homicide and a wrongful death civil lawsuit: In a criminal case, the accused's guilt must be established "beyond a reasonable doubt," which is a very high bar for the prosecution to clear. In a civil lawsuit, the defendant's liability must be shown only "by a preponderance of the evidence," meaning it's more likely than not that the defendant is responsible for the death. (Learn more about proving liability in a wrongful death case.)
In some states, the deceased person's surviving family members can file a wrongful death lawsuit. In Virginia, though, a wrongful death claim must be filed by the personal representative (sometimes called the "executor") of the deceased person's estate. However, there is an exception for when a fetus dies due to another party's wrongful act, neglect, or default. In that case, the mother may file the wrongful death lawsuit. (Va. Code § 8.01-50 (2021).)
Although the personal representative must file a Virginia wrongful death claim, any damages (more on that, below) awarded will go to the deceased person's "statutory beneficiaries." (Va. Code § 8.01-53 (2021).) Statutory beneficiaries—meaning family members or dependents of the deceased who may, by law, recover in a wrongful death claim—can include:
Read more about who has the legal right to file a wrongful death lawsuit.
In Virginia, wrongful death claims must be filed within a certain period of time, under a law called a "statute of limitations." The statute of limitations that applies to wrongful death claims in Virginia gives the personal representative two years from the date of the deceased person's death to file the lawsuit. If a wrongful death claim is not filed within two years, it will most likely be barred from court. (Va. Code § 8.01-244 (2021).)
In a successful wrongful death lawsuit, the court orders the defendant to pay "damages"—or compensation for losses associated with the death—to the deceased person's survivors or estate. Under Virginia law, damages in a wrongful death claim may include, but are not limited to, compensation for:
In cases where the conduct that caused the death is "willful or wanton" or reckless in a way that demonstrates "a conscious disregard for the safety of others," the court may award punitive damages. Unlike the types of damages described above, punitive damages are not intended to compensate for specific losses. Instead, punitive damages are awarded to punish especially bad behavior and deter others from engaging in similar behavior in the future.
Read the full text of Virginia' wrongful death laws at Va. Code §§ 8.01-50 to 8.01-56, and learn more about damages that might be available in a successful wrongful death case.
If you are thinking about filing a wrongful death lawsuit in Virginia, or you would like to learn more about your legal options, you might consider contacting an experienced personal injury attorney in your area.