Losing a loved one is always difficult. But when they die because of someone else’s carelessness or intentional conduct, it can be even harder to deal with the sense of injustice.
In these situations, you may be able to file a wrongful death claim to recover financial compensation for your losses. Generally, you can file a wrongful death lawsuit if your loved one would have been able to file a personal injury claim if they had survived. Through this type of lawsuit, you can recover money for medical bills, funeral expenses, sorrow, mental anguish, and loss of income.
At Johnstone & Gabhart, we understand how devastating it can be to lose a loved one in this way. We work hard to help injury victims and their families get the compensation that they deserve for their losses. To learn more or to schedule a free consultation with a WV personal injury lawyer, give our law office a call today.
When Can You File a Wrongful Death Lawsuit?
Under West Virginia law, you can file a wrongful death action for a death that was caused by the wrongful act, neglect, or default of another person or entity. Essentially, if the person who died (decedent) would have been able to file a personal injury claim against the at-fault party if they had survived, you may be able to file a wrongful death lawsuit against the responsible parties.
For example, consider a situation where a man is killed in a car accident caused by a drunk driver. If he had survived his injuries, then he could have sued the other driver to recover compensation for his losses. Because he died, his close family members can bring a claim for wrongful death.
Wrongful death claims can arise from any number of situations, including pedestrian accidents, truck accidents, slip and falls, medical malpractice, nursing home abuse, or even dog bites. You may even be able to file a wrongful death claim if a loved one dies because of a dangerous or defective product. If your family member died because of something that someone else did – or failed to do – it may be the basis of a wrongful death action.
These types of claims are often based on a theory of negligence, which is a form of carelessness. A person is considered negligent if they failed to use the level of care that a reasonable person would use in a similar situation. Texting and driving is an example of negligent conduct.
However, there are some situations where a wrongful death case is based on intentional or reckless conduct. If someone beats up a family member and they die as a result, you could bring a claim against them for your losses. Similarly, if someone gets behind the wheel of a car after drinking and driving, this reckless conduct could be the basis of a wrongful death lawsuit.
To win a wrongful death claim, you will need to prove the following:
- The at-fault party (defendant) was partially or wholly responsible for the death.
- The defendant’s negligent, intentional, or reckless behavior caused the person’s death.
- The person’s death affected their surviving family members.
- The person’s death caused financial losses.
It can often be hard to know whether you have a potential case. The best way to understand your rights is to schedule a free initial consultation with a West Virginia wrongful death attorney. They will listen to your story and offer you advice on your options for pursuing a claim.
Who Can Bring a Wrongful Death Lawsuit?
In West Virginia, a wrongful death claim is brought by the personal representative of the estate of the decedent. A personal representative is often a family member, but it may be another person, such as a lawyer or a family friend. They are appointed by the probate court to manage the estate of the decedent.
Although the personal representative brings the lawsuit, any compensation received via settlement or verdict at trial will go to the decedent’s surviving family members. Specifically, the wrongful death statutes provide that the following people may be entitled to compensation after the wrongful death of a loved one:
- Surviving spouse (if any)
- Children, including both adopted children and stepchildren
- Anyone who was financially dependent on the deceased person at the time of their death
- Anyone who would otherwise be equitably entitled to share in such compensation
A court will make the determination as to how any damages (compensation) in a wrongful death case. If a person dies without any close surviving family members, then any damages will be distributed according to their will or, if they have no will, according to West Virginia’s intestate succession laws.
The rules surrounding wrongful death cases can be confusing. If you have any questions, a WV wrongful death lawyer can help you understand your rights.
Compensation in a Wrongful Death Lawsuit
In a personal injury case, the accident victim may recover compensation – known as damages – for their losses. Wrongful death actions are a type of personal injury case, but the damages are slightly different because they are largely intended to address the losses of the surviving family members. These damages fall into three categories: economic, non-economic, and punitive damages.
Economic damages are intended to compensate an injury victim for their direct financial losses. In a wrongful death case, they may include medical expenses related to care for the deceased person prior to their death, compensation for the reasonably expected loss of income, and reasonable funeral and burial expenses.
Non-economic damages compensate victims for their intangible losses. In wrongful death settlements, non-economic damages can be quite significant. They may include:
- Sorrow, mental anguish, and lost love and support of the departed, which may include society, companionship, comfort, guidance, kindly offices, and advice
- Compensation for loss of services, protection, care, and assistance provided by the decedent
For example, if a young father is killed in a car accident, his wife and minor children may seek compensation for the loss of companionship, loss of guidance and support, the income that he would have contributed to their household, any medical bills that he incurred before dying, and his funeral and burial expenses.
Finally, in some cases, punitive damages may be available. This category of damages is meant to punish a wrongdoer and deter others from engaging in similar conduct. Punitive damages are only awarded in cases involving intentional or reckless conduct, such as nursing home abuse or drunk driving accidents.
How a WV Wrongful Death Lawyer Can Help
In the months after a wrongful death, the last thing on your mind may be filing a lawsuit. Nevertheless, you may be approached by an insurance adjuster who asks you to make a statement or even offers you a settlement. You should not talk to them until you have had a chance to talk to a personal injury attorney.
Insurance companies are in business to make money. Part of how they do this is by paying out as little as possible on claims – or by denying them entirely. In many cases, the only way to get a fair settlement from an insurance company is by pursuing legal action.
A West Virginia wrongful death attorney will take over all communications with the insurance company for you. They will perform a full investigation of the fatal accident, gather medical records, seek out pictures and videos, interview witnesses, and talk to experts in the field. During this difficult time, they will take a major load off of your shoulders by handling all of the paperwork and bureaucracy associated with filing an insurance claim.
The majority of personal injury lawsuits are resolved outside of court, through skillful negotiation. However, if the insurance company refuses to offer you fair compensation for your injuries, your law firm will file a lawsuit within the applicable time limits and prepare a case for trial. The information learned during this pre-trial phase can often help you achieve a much better settlement for your claim.
Studies show that people who have legal counsel recover an average of 40% more than people who represent themselves in personal injury cases. In addition, most personal injury lawyers handle cases on a contingency fee basis, which means that you only pay a fee if they recover money for you. In other words, there is little risk to hiring a WV wrongful death lawyer – but you have the potential to gain far more compensation than otherwise would have.
How Our Law Firm Can Help
After a loved one dies, you may not know what to do next. While money cannot make you whole again, it can help to ease the financial strain. It may also give you a sense of justice.
The legal team of Johnstone & Gabhart is dedicated to helping injury victims and their loved ones get maximum compensation for their losses. We offer free initial consultations, and never charge a fee unless we recover money for you. To learn more or to schedule a free consultation with a WV wrongful death lawyer, give our law office a call at 866-532-2027 or fill out our online contact form.
How Long Do You Have to File a Wrongful Death Lawsuit in West Virginia?
The statute of limitations for a wrongful death action in West Virginia is 2 years. This means that you have 2 years from the date that the deceased person died to file a claim. If you do not file your claim within this time period, then you may not be able to pursue legal action against the at-fault party.
It can be difficult to even think about filing a lawsuit after a loved one dies. However, it may be necessary to preserve your rights. Call Johnstone & Gabhart today to schedule a no-cost, no-obligation appointment with a WV wrongful death attorney.
If the Deceased Person Was Partially at Fault, Can I Still File a Wrongful Death Lawsuit?
Possibly. West Virginia follows a modified comparative fault rule. As long as the decedent was 50% or less to blame for the accident, you can still pursue legal action. The total amount of recovery will then be reduced by the percentage that they were at fault for the accident. If they were 51% or more at fault, then you probably cannot file a wrongful death lawsuit.
Comparative fault issues can be complicated. If your loved one died because of something that someone else did (or failed to do), reach out to our law office to schedule a free initial consultation with a West Virginia wrongful death law firm.
Can I File a Wrongful Death Lawsuit Even If the Other Person Hasn’t Been Charged with a Crime?
Yes. A wrongful death action is a civil matter. In many situations, these types of cases are not based on conduct that is against the law. You can still bring a lawsuit for wrongful death even if the at-fault party has not been charged with a crime.
However, it is possible that the wrongdoer will also be charged with a crime – such as in a drunk driving accident. Even if that person is not ultimately convicted, you can still pursue a claim for wrongful death because the standards of proof and the evidence required for each type of case are different. In West Virginia, contact Johnstone & Gabhart to schedule a free consultation.