A wrongful death is always an unfair situation. Wrongful death cases are typically accidents that should never have occurred had standards of care been followed. Bringing a wrongful death claim can help family members rebalance the scales after a loss and seek some kind of compensation from the person or corporation that caused their loved one’s death.
Proving wrongful death, however, is often the main hurdle when it comes to bringing a successful case. Missing files, lack of documentation, or lack of resources often stall a wrongful death lawsuit in Virginia. Working with an experienced wrongful death attorney can help a family receive the assistance they need to bring a well-built case for compensation.
What Is a Wrongful Death Action in Virginia?
Wrongful death can occur any time a person or corporation takes another person’s life through an act of neglect or recklessness. Wrongful death cases are a civil area of the law, unlike criminal manslaughter or murder trials. Wrongful death claims allow those who are connected to the deceased the option to file for financial compensation.
Who Can File a Wrongful Death Suit in Virginia?
A wrongful death lawsuit must be brought by a personal representative in the name of the deceased. A personal representative might be the executor of the deceased’s estate or a family member.
Beneficiaries of the wrongful death lawsuit, under §8.01-54, can include the surviving spouse, children, grandchildren, or parents of the deceased. The personal representative who brings the case is not necessarily the only one who benefits from a wrongful death lawsuit, when it is successful.
Virginia’s Wrongful Death Time Limits
Under Virginia Article 5 §8.01-50, a wrongful death claim can be brought only when the party, had they survived, would have been able to sue for personal injury. This is 2 years from the date of death. An estate must be set up before the 2-year time limit in most cases, so as not to be time-barred.
How Does Legal Representation Prove Wrongful Death in Virginia?
Proving wrongful death is often the most difficult part of building a successful case. You will need to illustrate clearly that the at-fault party’s “wrongful act, neglect, or default” would have created a cause of action had they lived. This must be satisfied by a preponderance of evidence, meaning that it is more likely than not.
Gathering Key Evidence
Records relating to your loved one’s death are often critical factors in building a complete case. Some examples can include:
- Police reports
- Internal office paperwork
- Hours of service logs
- Medical records
- Autopsy report
- First responder testimony
- Eyewitness accounts
- Audio or video recording of the fatal accident.
The Role of Expert Witnesses
An experienced wrongful death law firm in Virginia can connect you with expert witnesses who can also play an important role in your case. Trucking experts, industry experts, and medical experts are often able to shine a light on factors that only an industry insider would know about, but that are critical to proving wrongful death. They may be able to provide critical context as well as connect the dots clearly for a judge or jury to understand how the death occurred, as well as what could have been done to avoid it.
Common Types of Wrongful Death Negligence Cases
Some of the most common kinds of wrongful death cases in Virginia include:
Car Accidents and Truck Accidents
Car accidents and truck accidents can involve a wrongful death claim between two parties, or an employer, such as a trucking or shipping company, can also be involved. In this case, the claim may become more complicated. Corporations carry additional liability insurance, but may also be more motivated to protect themselves from payouts.
Medical Malpractice
Medical malpractice cases are unfortunately frequent in Virginia. Surgical errors, misdiagnosis, delayed treatment, or prescription drug errors all can constitute medical malpractice. It is important to note that under Virginia law, expressions of sympathy or apologies by a healthcare provider are not admissible under §8.01-52.1 as evidence of liability.
Workplace Accidents
Workplace accidents involve an understanding of workers’ compensation rules in Virginia as well as personal injury law. You cannot sue your own employer, but you may, under certain circumstances, sue a contractor working on the same worksite. Workplace accidents typically involve bringing a claim against an employer’s insurance company, and may involve subpoenaing internal records about the accident.
Defective Products
Consumer protection laws allow Virginia residents to pursue compensation if a poorly designed or manufactured product caused a wrongful death. Claims generally fall into three categories:
- Manufacturing flaws: The product may have been designed safely, but an error from the manufacturing company created a dangerous product.
- Design defects: The inherent design of the product was unsafe, no matter how it was manufactured.
- Failure to warn: Inadequate instructions concealed hidden dangers.
How Virginia’s Contributory Negligence Rule Affects Your Case
Virginia is one of the only states in the US that adheres to a strict contributory negligence rule. This factor bars many wrongful death cases from ever succeeding, and needs to be carefully addressed by a Virginia wrongful death attorney. Under the contributory negligence rule, if the deceased party is found to be at all at fault for the accident, then the surviving family members are barred from receiving fair compensation.
What this means in practical terms is often very difficult for family members. Say you have lost a loved one in a trucking accident. During your time of grief, the trucking company may attempt to smear your loved one’s character, attacking their work ethic, their understanding of the job, or their actions on the day of their death.
They may attempt to claim that their death was essentially their own fault, or at the very least that they contributed to the accidents. If they can prove that your loved one was even 1% at fault in the accident that caused their death, they can escape paying any compensation at all to surviving family members.
A wrongful death attorney will need to pay careful attention to this line of attack, as it can cripple a case from ever moving forward. Contributory negligence must be addressed by an attorney with experience in personal injury law as well as deep roots in Virginia. Those with an incomplete understanding of this state-specific statute may not be able to bring a successful claim, due to its unique nature and strict standards.
The Statute of Limitations for Wrongful Death in Virginia
The statute of limitations for wrongful death in Virginia is two years. If you do not file a wrongful death case within this timeline, you will be barred from ever recovering compensation.
However, you should never wait until the statute of limitations is approaching to begin your personal injury claim. There may be additional issues with filing that can delay your wrongful death case or even shorten the deadline, such as opening an estate. Consult with a wrongful death lawyer as soon as possible to ensure that you can build an effective case while the evidence is fresh and before memories fade.
Monetary Damages Available in a Virginia Wrongful Death Lawsuit
Under Virginia § 8.01-52, economic and non-economic damages can be paid out for factors including:
- Sorrow, mental anguish, and solace. This can include loss of society, companionship, comfort, guidance, kindly offices, and advice of the decedent. This is based on the value of the beneficiaries’ specific relationship with the deceased.
- Compensation for reasonably expected loss of income of the decedent. If you were relying upon the decedent for income as well as services, protection, care, or assistance (i.e., paychecks, help with childcare, etc.)
- Medical expenses, including care, treatment, and hospitalization connected to the injury before death
- Funeral expenses
- Punitive damages paid only for wilful or wanton conduct or extreme recklessness.
Contact Halperin Law Center for a Free Consultation
Contact Halperin Law Center if you need assistance filing a wrongful death lawsuit in Virginia. We offer free consultations with our attorneys, who have years of experience handling Virginia wrongful death cases. Get started as soon as possible for the best results.
