One of the most difficult things in life is dealing with the loss of a loved one. It can prove emotionally and financially taxing. However, when a loved one’s death is brought about due to negligence, West Virginia allows for individuals to file a wrongful death claim for the financial loss brought about. This serves to prevent the same or similar event from occurring again, by holding wrongdoers financially accountable.
Wrongful Death Claims: What Are They?
A wrongful death claim is a law that allows for a deceased individual’s estate to file a claim against the person or entity that is legally liable for his or her death. Sometimes these claims, also called wrongful death lawsuits, are settled before a lawsuit is even filed. (A wrongful death claim does not become a wrongful death lawsuit, until the complaint is filed in a West Virginia court of law.
Wrongful death claims can sometimes lead to a criminal case dependent upon the circumstances. This does not preclude family members from bringing a civil action.
Who May File Wrongful Death Suit in West Virginia?
In West Virginia, the representative of the deceased individual’s estate is entitled to bring suit on behalf of the estate. The personal representative must represent the estate’s interests and is obligated to post bond in order to insure that that will not violate their duty at the estate and its beneficiaries’ expense. The decedent’s representative may be chosen via his or her will. If it is not, someone must apply to be appointed as administrator of the estate.
Who May Receive Wrongful Death Compensation from a WV Claim?
If a wrongful death lawsuit is filed and is ultimately victorious, the compensation recovered goes to the estate’s beneficiaries. This includes the decedent’s:
- Surviving Spouse
- Children (bio, stepchildren, and adopted)
- Parents and Siblings
- Other dependents (those who were financially dependent upon the decedent at time of death)
- Any individual who is otherwise equitably entitled to share in the distribution
To determine who receives what amount depends on multiple factors. If the case ends in a jury verdict for the estate, the jury may determine what proportions of the award are distributed to which beneficiaries.
If a case is settled before a jury verdict, the court will decide based upon fairness and justice among others. The court will set a time for a hearing at which any beneficiary may speak on how they believe that the award should be distributed. In some instances, all beneficiaries may come to an agreement, but the court must still sign off on the decision in order to approve of it.
Under the West Virginia statute of limitations, a wrongful death lawsuit must generally be filed within two years from the date of the death. Failure to file within that time period may bar recovery. However, some exceptions exist.
In cases of wrongful death, there are two types of compensatory damages:
1.Intangible and emotional losses, such as:
- Loss of comfort, guidance, and advice
- Loss of companionship
- Loss of society
- Mental anguish
2.Financial losses, such as:
- Compensation for loss of services, protection, care, and assistance Compensation for reasonably expected loss of income of the decedent
- Expenses for the care, treatment, and hospitalization of the deceased that are related to his or her death
- Reasonable funeral expenses
A court may also award “punitive damages” in especially egregious circumstances in order to punish those responsible for intentional, reckless, or malicious wrongdoing.