Although we don’t like to dwell on the subject, death is part of the circle of life that no one can avoid. A serious illness could portend a person’s death, and that might allow the family to prepare as best as they can. Other deaths can happen suddenly, which can trigger emotional trauma for those left behind. There are also scenarios where the death is caused by negligence. In those incidents, it would be considered a wrongful death.
There can be a lot of anger associated with a wrongful death of a loved one. If not for the actions of the negligent person or entity, that loved one would still be with their family, enjoying life. While the loss of a loved one can never be replaced, there is a remedy that can be pursued. Who can file a wrongful death claim in Virginia?
What Constitutes a Wrongful Death?
Before filing a claim, it is important to understand what constitutes a wrongful death in the eyes of the law. The Virginia legislature defines wrongful death as the following:
“Whenever the death of a person shall be caused by the wrongful act, neglect, or default of any person or corporation.”
For example, if a truck driver was operating their vehicle under the influence of alcohol and crashed into a car, killing the driver, they could be held liable for a wrongful death. However, suppose that same truck driver is clearheaded and driving responsibly but crashes into a car on an icy road in an unavoidable accident. In that case, they might not be liable for a wrongful death.
The same situation occurs when health professionals are involved. In those instances, a wrongful death claim can only be brought if there is a clear instance of medical malpractice. That would have to be backed up by expert testimony and documentation.
Eligible Survivors
When filing a wrongful death claim, there is a specific list of eligible claimants based on their relationship to the decedent. In other words, you can’t file a claim like this if you’re just a friend and will miss the person. You will need to work with an experienced wrongful death attorney who understands the laws pertaining to these situations.
This is the order of claimants according to Virginia law:
- The surviving spouse
- Children of the deceased and any children of any deceased child of the deceased
- Parents of the decedent if those parents received financial support and services from the decedent
- Brothers and sisters of the decedent if there are no spouses or children
- Any relative who was relying on the decedent for financial support
Bottom line: A relative is considered to be “any person related to the decedent by blood, marriage, or adoption and also includes a stepchild of the decedent.”
One clear exception is a parent whose parental rights have been terminated by a court order. This would pertain to the loss of a child whose parent has no parental rights because of a divorce or other court orders.
Available Damages in a Wrongful Death Claim
If you are eligible to file a wrongful death claim, you are entitled to seek economic and noneconomic damages. The difference between those two categories comes down to a matter of what is quantifiable.
Economic damages are quantifiable because they can be backed up by a bill. In wrongful death filing, these would be the financial losses for any medical expenses related to the injury that led up to the death. They would also include all funeral expenses. Additionally, as a designated survivor, you are entitled to receive compensation for the reasonably expected loss of income or services provided by the decedent.
For instance, if a parent dies and their job provides income that supports the family, and it is reasonable to assume they could have worked at that job up until the time of their retirement age, the survivors are entitled to receive a portion of that lost income. If the decedent cared for a family member, those services would also have a value attached that can be compensated.
The noneconomic damages speak more to the emotional loss. The law defines this as “sorrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent.”
Calculating the damages in a wrongful death case can be extremely complicated. It will often involve hiring a forensic economist or accountant. They will be able to determine a person’s potential income based on their previous salary, profession, education level, and age at the time of death. Additionally, factors such as life insurance benefits, the rate of inflation, and other economic factors will be taken into consideration to determine the final number.
You might also seek punitive damages. This would be a form of direct punishment for the negligent party. Virginia has a cap of $350,000 for punitive damages, which can only be claimed if the liable party is still alive.
Why Legal Representation Matters
Filing a wrongful death claim can stir up a lot of emotions, but it can also help provide a certain amount of closure to help surviving families move on. It is vital that you find the right support and guidance from a qualified legal counsel like the team at Curcio Law. We have a track record of success in helping families recover from the loss of a loved one. We provide the information you need to make the right decision about your claim.
