The death of a family member or loved one is one of the most stressful, emotional, and difficult events in life. When that person’s life was taken due to someone’s negligence, grief that is already overwhelming can be all but unbearable. The civil justice system cannot do anything to bring back a lost loved one. It can, however, compensate a family during these incredibly difficult and emotional periods.
A wrongful death lawsuit may be filed in West Virginia when a person dies because of someone else’s “wrongful act, neglect, or default.” This type of claim may arise from a car accident, medical malpractice, slip and fall, or another type of accident. Surviving family members may pursue compensation for their financial losses as well as the emotional impact of losing a loved one.
At Johnstone & Gabhart, we know how difficult it is to reach out to a law firm following the death of a loved one, but taking decisive action by reaching out to an experienced team of lawyers can allow you to focus on personal business and healing. Give our law firm a call today to schedule a free initial consultation with a Charleston personal injury attorney.
Understanding Wrongful Death Law In West Virginia
West Virginia’s wrongful death statute is long and complex. The bottom line: if your family member died because of something that someone did or failed to do, you may be able to file a lawsuit against the at-fault party. For example, if your parents were killed in a drunk driving accident, you can file a claim against the drunk driver for their wrongful death.
As wrongful death attorneys, we feel we must ensure our clients fully understand the legal process and the specifics of their cases. Below please find information about West Virginia’s wrongful death law, which we hope you find informative and useful:
- Who may file a wrongful death lawsuit: In West Virginia, the person who has been appointed as the personal representative or executor of the estate of the deceased may file a wrongful death lawsuit and settlement. Personal representatives appointed outside of West Virginia may still bring a claim provided they post bond and pay any necessary costs.
- Statute of limitations: A personal representative has two years from the date of death to file a wrongful death lawsuit. If a lawsuit is not filed within that time, then your case will likely be dismissed. We encourage you to take action as soon as possible so you do not lose your right to your day in court.
- How wrongful death lawsuits are typically resolved: Wrongful death lawsuits are resolved either in court or by negotiating an acceptable settlement. Our firm always tries to obtain fair and just compensation without seeking court intervention as it can save time and reduce stress. We are, however, always prepared to protect our clients’ rights in front of a judge or jury if we feel settlement negotiations will not provide you with the outcome you deserve. Any settlement agreement must be approved by all beneficiaries with an interest in the outcome.
- The steps to take/requirements: There are many steps involved in filing a successful wrongful death claim. They include obtaining a death certificate, posting a bond, conducting an investigation, and gathering evidence. If your loved one died in an accident, an experienced Charleston wrongful death lawyer can help you understand the process and what you will need to prove to prevail.
- Available damages: In personal injury cases, compensation is referred to as damages. A judge or jury may award damages for loss of companionship and the sorrow surviving family members experience during this difficult time. Other damages can be awarded to replace lost income, for the loss of protection and other services offered by the deceased, to cover medical bills, and to pay for funeral expenses or burial services.
Elements Needed to Prove a Wrongful Death Case in Charleston, West Virginia
A wrongful death case is a claim made on behalf of someone killed as a result of the negligence (carelessness), reckless, or intentional act of another person. Four elements are required to prove a West Virginia wrongful death case. The attorney for the plaintiff must prove each of these to succeed in a settlement or court case.
The burden of proof is on the wrongful death attorney to show:
- The defendant was partially or wholly responsible for the death.
It must be proven that the defendant played some part in the person’s death. Even if they were not completely responsible, they could be held to some degree of responsibility for the death.
- The defendant’s negligence led to the person’s death.
There are any number of ways that a person can be deemed negligent in a wrongful death case. Texting and driving, DUI, improper vehicle maintenance, excessive speed, and crossing the centerline are examples of negligence.
- The person’s death affected their surviving family members.
A sudden death can have a profound effect on a family, thrusting it into a state of turmoil that can take a very long time to resolve. Young children may be left without a parent or parents may lose their child. If the head of the household dies, the family may be left struggling to fill the voids that the loss leaves behind – both emotionally and financially.
- The person’s death resulted in financial damages.
If the person who dies is the breadwinner, it can be financially devastating for the family. They may not have any other income and no time to make arrangements. The financial impact can be substantial, including medical expenses, funeral and burial costs, and the loss of their financial support. Even if the deceased person was not the main breadwinner, the surviving family members will still have a claim for their lost income and benefits.
Once all four of these elements are proven, it usually means that the estate has a strong claim for a wrongful death suit. If you have lost a loved one due to someone else’s negligence, you need an experienced Charleston wrongful death attorney to guide you through the process. To start the process, the estate must be established and any settlement received must be approved by the Court.
Decades of Experience on Your Side
Because we at Johnstone & Gabhart, LLP, have worked on personal injury and wrongful death issues for decades, we know how difficult they are for families. As such, compassion, empathy, and patience form the bedrock of our approach. We are ready to take the expertise we have honed in our years of practice to do everything possible to recover compensation for:
- Medical services
- Memorial and burial expenses
- Injury to the deceased
- Injury to the deceased person’s family
- Lost wage earning capacity of the deceased
- Companionship
- Solace
- Punitive damages
- Pecuniary damages
Wrongful Death Settlements in West Virginia
Wrongful death settlements can provide financial compensation to a close family member who would have otherwise benefited from that individual’s income or support going forward, but the actions or inaction of the other person led to the individual’s death.
The majority of personal injury claims – including wrongful death cases – are resolved outside of court. In some cases, a claim will be settled without filing a lawsuit. In many cases, it is necessary to file a personal injury lawsuit. This does not mean that the case will go to trial; instead, it is a way to protect your rights while you continue to negotiate.
Insurance companies often push surviving family members to accept a lowball settlement. They often focus on economic damages – such as medical bills – and ignore the anguish and emotional distress that surviving family members are experiencing. The best way to get full compensation for your injuries is by working with an experienced Charleston wrongful death lawyer.
Who Can File a Wrongful Death Settlement?
Personal injury claims and wrongful death claims occur with the same goal of seeking out compensation for what is lost. However, the victim here is unable to file a claim because he or she has died. For this reason, the person’s close family member, such as a spouse, child, parent, or sibling can file for a settlement.
Code section 55-7-6 under West Virginia law states that the compensation received from a wrongful death settlement is paid to the surviving spouse. If there is no spouse, then it is paid to the children, stepchildren, and adopted children. Others who may receive compensation include parents and siblings. Only then may other family members receive compensation only if they were, in some way, financially dependent on the individual at the time of his or her death.
What Compensation Is Available?
Under West Virginia law, the family can file a wrongful death claim for the damages suffered by the family as a result of the individual’s death. This can include both economic and noneconomic damages, such as:
- Sorrow, mental anguish, and solace
- Loss of companionship, society, guidance, comfort, kindly offices, and advice.
- All costs related to the individual’s death, which may include medical bills from an illness or an injury
- Compensation for all lost wages and benefits; can include amounts that would be expected should the individual have lived
- Compensation for all funeral and burial expenses
- Compensation for any type of damage to property or other items lost
In some cases, punitive damages may be awarded. These damages have a different purpose. Instead of compensating surviving family members for their loss, punitive damages penalize a wrongdoer. They are only available in cases where the at-fault party acted intentionally or recklessly (such as a drunk driving accident).
Individuals need to consider all types of loss suffered in this type of situation. Filing a claim for wrongful death is a civil matter. This type of lawsuit can require significant consideration for costs and long-term losses suffered by family members.
Regardless of your unique circumstances, we are committed to obtaining the compensation you need and deserve while obtaining justice and accountability. Decisive action is crucial, however. We are here for you and encourage you to get in touch as soon as possible.
Schedule a Free Initial Consultation With Our Attorneys Near You
Losing a family member unexpectedly can be devastating, both financially and emotionally. It can often be difficult to even think of filing a lawsuit when you are grieving. While a lawsuit cannot bring your loved one back, it can bring you some measure of justice.
Based in Charleston, Johnstone & Gabhart advocates for injury victims throughout West Virginia. We handle all personal injury cases on a contingency fee basis, which means that you will never pay a fee unless we recover money for you. To get in touch and schedule a free initial consultation with our wrongful death attorneys, fill out our online contact form or call our law offices at 304-343-7100.
