Wrongful Death Lawsuits in West Virginia

Like all states, West Virginia has its own laws governing wrongful death claims. These laws allow a deceased person's estate to file a lawsuit if the person died as a result of another party's accidental or intentional act. In this article, we'll look at West Virginia's wrongful death statutes and discuss some of the ways in which these laws might apply to a lawsuit filed in the state.

How Does West Virginia Law Define "Wrongful Death"?

A West Virginia wrongful death claim is a civil lawsuit that seeks damages when one person's death is another party's fault, due to a "wrongful act, neglect, or default." The law states that a wrongful death claim can be pursued in any situation where the wrongful act, neglect, or default would have permitted the deceased to file a personal injury lawsuit had he or she survived. (W.Va. Code § 55-7-5 (2021).)

As with personal injury lawsuits in general, many different types of events or acts can be the basis for a wrongful death lawsuit, including:

• negligence-based incidents (such as car accidents)
• medical malpractice, or
• intentional acts (including crimes).

What's the Difference Between a Criminal Homicide Case and a Wrongful Death Claim?

As in other types of personal injury cases, a wrongful death case allows the plaintiff to seek financial compensation (or "damages") for their losses directly from the defendant. 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.

There are other differences between a criminal homicide prosecution and a wrongful death lawsuit. For example, in criminal court, the state or federal government must establish the accused person's guilt "beyond a reasonable doubt"—a very high bar for the prosecution to clear. In a civil lawsuit, the plaintiff must demonstrate the defendant's liability only "by a preponderance of the evidence," meaning it's more likely than not that the defendant is responsible for the death. It is possible, though, for a single event to result in criminal charges and a wrongful death claim: A defendant can be sued for wrongful death in civil court while facing criminal charges related to the same death. In fact, West Virginia's law specifies that a wrongful death claim can proceed even if the death was the result of murder or manslaughter.

Learn more about proving liability in a wrongful death case.

Who May File a West Virginia Wrongful Death Lawsuit?

Unlike some states that allow surviving family members to file a wrongful death lawsuit, West Virginia law requires the personal representative (sometimes called the "executor") of the deceased's estate to bring a wrongful death claim to court. (W.Va. Code § 55-7-6 (2021).)

Although the personal representative is responsible for filing the lawsuit, surviving family members will receive any damages awarded in the case (more on damages, below). Under West Virginia's wrongful death law, the following people may receive compensation in a wrongful death case:

• the deceased's surviving spouse
• the deceased's children, stepchildren, and adopted children
• the deceased's parents and siblings, and
• any family members who were financially dependent on the deceased at the time of his or her death.

If none of those people survive, the damages will be distributed according to the provisions of the deceased's will or, if there is no will, according to West Virginia's inheritance laws.

Read more about who has the legal right to file a wrongful death lawsuit.

What Damages Are Possible in a West Virginia Wrongful Death Case?

In a successful wrongful death lawsuit, the court orders the defendant to pay "damages"—or the plaintiff's claimed losses—to the deceased person's survivors. Under West Virginia law, damages can be awarded for a range of losses, including (but not limited to) compensation for:

• sorrow, mental anguish, and solace
• loss of society, companionship, comfort, guidance, kindly offices, and advice
• lost income, including the reasonable value of wages and benefits the deceased would have been expected to earn if he or she had lived
• loss of the deceased's services, protection, care, and assistance
• medical bills related to the deceased person's last illness or injury, and
• funeral and burial expenses.

Learn more about the types of damages that might be available in a wrongful death case.

Comparative Fault and Wrongful Death Damages 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 injury. 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 can still be eligible for damages if the other party was found to be more at fault than the deceased. However, the estate cannot recover damages in a wrongful death case if the deceased person was more than 50 percent at fault. (W.Va. Code §§ 55-7-13a, 55-7-13c (2021).)

For example, suppose that a pedestrian crossing a West Virginia street is hit by a car. The driver of the car ran a red light, but the pedestrian was looking at his cellphone while crossing the street. 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 more than 50 percent at fault, however, the estate would have been barred from collecting any damages at all.

What Is the Time Limit on Filing a West Virginia Wrongful Death Claim?

Like other lawsuits, wrongful death claims must be filed within a certain period of time, set by a law known as a "statute of limitations." In most West Virginia wrongful death cases, the deceased's personal representative has two years from the date of the death to file a claim. However, if the wrongful-death claim is based on medical malpractice in a nursing home, assisted living facility, or a hospital providing skilled nursing care, a one-year filing deadline applies. In either situation, if the case is not filed within the applicable time period, the court may dismiss the claim entirely. (W.Va. Code § 55-7-6 (2021).)

If you're considering a wrongful death lawsuit in West Virginia, it's a good idea to consult a personal injury attorney. Wrongful death claims can be complicated, and an experienced lawyer can explain how the state's laws apply to the circumstances of your case.