The death of a loved one carries with it immense feelings of loss. This loss is only compounded when a loved one’s untimely death is cause by the wrongful conduct of another. Oftentimes, the family member who was catastrophically killed was a father, husband, mother, wife, and sole income earner for the family. No lawsuit and no amount of money can ever replace a loved one. Nevertheless, like we tell our kids when they get in trouble at school, parties who are at fault should be held accountable for their conduct. As much as possible, families deserve to be put in the same position they would have been in absent the wrongful death of their loved one.
Wrongful death cases in West Virginia can be complex cases. Accordingly, it’s important that you hire a wrongful death lawyer that has experience in handling wrongful death claims. Barney Law PLLC has experience in handling wrongful death cases throughout West Virginia. This blog provides a general overview of wrong death law in West Virginia.
Historical Background of the Wrongful Death Act
West Virginia law, by and large, is derived from English common law. At English common law, a family could not bring a case for wrongful death due to the loss of their loved one. Nevertheless, beginning in 1846, the English Parliament adopted the Fatal Accident Act of 1846, commonly referred to as “Lord Campbell’s Act.” “This Act permitted recovery of damages by the close relatives of a victim who was tortiously killed.” Farley v. Sartin, 195 W. Va. 671, 674, 466 S.E.2d 522, 525 (1995).
A year later, in 1847, New York was the first state in the United States to permit a case for wrongful death. Currently, every state in the union permits a cause of action for wrongful death and these laws are generally patterned after the English 1846 Lord Campbell’s Act. Farley v. Sartin, 195 W. Va. 671, 675, 466 S.E.2d 522, 526.
West Virginia enacted its Wrongful Death Act in 1863. In its present form, the Act provides, in part, that:
Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action to recover damages in respect thereof, then, and in every such case, the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to murder in the first or second degree, or manslaughter.
W.Va. Code § 55-7-5, in part. Hence, if your loved one died as a result of the negligence of another, a wrongful death case can be filed on behalf of your loved one’s estate.
Who Can File a Wrongful Death Case?
The personal representative of the estate may file a wrongful death case on behalf of your loved one’s estate. The personal representative is typically the person who has filed with the county commissioner to administer the estate (and named the administrator or the executor depending on whether your loved one had a will). If no one filed to be the administrator, an experienced wrongful death attorney will be able to assist in the estate administration process.
The Types of Damages Available In A Wrongful Death Case
As previously mentioned, no amount of money or damage can replace a loved one. Nevertheless, West Virginia wrongful death law seeks to make families whole as much as it possibly can. The types of damages that can be awarded include, but are not limited to:
- An amount for pain and suffering the decedent sustained prior to his or her death;
- An amount for medical expenses including care, treatment, and hospitalization;
- An amount for reasonably expected loss of income of the decedent;
- An amount for reasonably expected loss of service, protection, care, and assistance;
- An amount for sorrow, mental anguish, and solace;
- An amount for loss of consortium;
- An amount for reasonable funeral expenses; and
- Other damages as permitted by West Virginia law.
Where a wrongdoer acted in a willful wanton, and reckless manner and caused the death of a person, a jury may award punitive damages that are designed to punish a wrongdoer for its conduct.
If A Jury Awards Money or the Case Settles, How Are the Funds Distributed in a Wrongful Death Case?
Unlike money or items designated in a decedent’s will, any money obtained through a wrongful death case does not necessarily “pass through” the estate, but is distributed to family members and other persons pursuant to West Virginia’s Wrongful Death Act.
Wrongful death proceeds may be distributed to the “surviving spouse and children, including adopted children and stepchildren, brothers, sisters, parents and any persons who were financially dependent upon the decedent at the time of his or her death or would otherwise be equitably entitled” to share. W.Va. Code § 55-7-6(b). If there are no survivors as listed above, the funds must be distributed in accordance with the decedent’s will. If there are no survivors and no will, the funds must be distributed in accordance with the laws governing decent and distribution.
If a case goes to trial, the jury will determine how the funds are distributed to the statutory beneficiaries. If a case settles, a Court, upon approval of the settlement, will decide how the funds are distributed between the statutory beneficiaries. Nevertheless, as a practical matter, families often decide between themselves who should get what and simply ask the Court to approve the agreement between family members.
Consult An Experienced Wrongful Death Attorney
A wrongful death case can occur in a variety of circumstances. These include, but are not limited to, construction accidents, coal mine accidents, car wrecks, medical malpractice cases, nursing home abuse and neglect cases, toxic torts, or criminal activity. If your loved one died as a result of the conduct of another, it is important that you act timely to pursue a case as there are statute of limitations that may prevent your case from going forward after a certain period of time. Wrongful death cases can be complex. Barney Law PLLC has experience in representing families in wrongful death cases. We work on a contingency fee basis meaning you owe us nothing unless a recovery is made. Call us today at 304-932-8775 for a free consultation.