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Who Can File a Wrongful Death Action in Virginia?

In Virginia, anytime a person’s death is caused by a wrongful act, or the negligence of another person, or corporation, a wrongful death action or lawsuit may be filed. For example, a wrongful death could occur as a result of a car accident, truck accident, medical malpractice, nursing home neglect, or from a latent disease or a serious injury caused by a dangerous product, a toxic substance or a defective drug. Wrongful death lawsuits hold the defendant accountable for the deceased person’s death. Of course, no amount of money can fully compensate for the loss of a loved one. However, financial compensation available from a wrongful death lawsuit may assist surviving family members with the loss of income and services, medical and funeral expenses, and assistance to family members in coping with their grief and loss of their loved ones.

Virginia law requires that that any wrongful death lawsuit must be brought by the personal representative of the deceased person’s estate. A personal representative is defined as the executor or administrator of the deceased person’s estate. The personal representative is appointed by the court to bring a cause of action for wrongful death, and is the individual who has standing, or the legal ability, to bring a wrongful death claim in court.

The beneficiaries in a Virginia wrongful death case are determined by Virginia Code § 8.01-53, which specifies that damages shall be distributed to certain individuals, depending on who survives the deceased person. This statute is divided into five different levels of beneficiaries starting with close relatives like the spouse, children, grandchildren, or dependent parents of the decedent at the top level and ending with more distant relatives at the lower level of the statute. If there are no survivors at the top level, the court goes to the next level and the next until it finds an applicable surviving beneficiary. This process can be difficult to navigate, and it often requires a trained lawyer to ascertain the proper beneficiary class for a given wrongful death action.

Once the decedent’s statutory beneficiaries are determined, the Virginia Code also specifies the type of damages available to those beneficiaries in a Virginia wrongful death case. These types of damages include damages for:

1. Sorrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent;

2. Compensation for reasonably expected loss of (i) income of the decedent and (ii) services, protection, care and assistance provided by the decedent;

3. Expenses for the care, treatment and hospitalization of the decedent incident to the injury resulting in death;

4. Reasonable funeral expenses; and

5. Punitive damages may be recovered for willful or wanton conduct, or such recklessness as evinces a conscious disregard for the safety of others.

In a wrongful death case, evidence of the damages that each statutory beneficiary incurred as a result of the decedent's death is presented through the testimony of the decedent’s family, friends, medical providers, and at times, other experts. The jury or the court determines how badly each beneficiary was damaged with regard to each type of damages, and distributes percentages of the total damages to the statutory beneficiaries in accordance with each beneficiary's particular losses.

Virginia has a strict statute of limitations on bringing wrongful death actions. Any lawsuit for a wrongful death must be brought within two years of the deceased person’s death, or the wrongful death action may be barred--meaning it can never be brought at all.

Harty Jewell, PLLC’s Virginia wrongful death lawyers have represented many families in wrongful death actions throughout the Commonwealth of Virginia, and our attorneys understand the sensitive and difficult choices faced by families having to engage legal counsel when confronted with the untimely death of a loved one. If you have lost a loved one as a result of the negligence of another person or as a result of a disease caused by a toxic substance, dangerous product or defective drug, call Harty Jewell, PLLC at 757-568-9633 for a free consultation.

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