Perhaps even more tragic and painful than suffering an injury yourself is learning that a loved one has been involved in a fatal accident or event. Not only can the news be shocking, but it can also be confusing, leading to questions about why this had to happen, what you’ll do next, and what legal rights you may have.
At The Masters Law Firm, our West Virginia wrongful death lawyers know that there is truly nothing that can be said or done to console you and make right this terrible wrong that has happened. However, we believe that by filing a wrongful death claim against the responsible party, you may be able to recover the financial compensation you’re owed for economic and noneconomic losses that have been incurred.
What Is a Wrongful Death Action?
Similar to a personal injury suit, a cause of action for wrongful death exists when the negligence of one party leads to the fatal injuries of another. The primary difference between a personal injury claim and a wrongful death action is that in the latter, the injuries of the plaintiff were fatal. However, the same elements must be established in order for the claim to proceed successfully, including 1) that the defendant owed the deceased person a duty of care, 2) the duty of care owed to the deceased person was breached, 3) the breach was the proximate cause of the accident or event, and 4) damages, including death, resulted.
Damages Recoverable in a Wrongful Death Claim
A wrongful death claim can be used to seek monetary damages on behalf of the decedent’s estate, surviving spouse, children, and any other relatives who were financially dependent on the decedent at the time of death (West Virginia Code Section 55-7-6). Damages that are recoverable in a wrongful death action include, but are not limited to:
Sorrow, mental anguish, and solace;
Expected loss of income;
Loss of services and protection;
Medical care and hospital expenses;
Reasonable funeral and burial expenses;
Punitive damages (when the actions of the party responsible for the wrongful death were especially egregious).
Our lawyers will work on your behalf to build your case and calculate the full value of all of your losses, including both economic and noneconomic losses, and when appropriate, we will ask for punitive damages as well.
Who Can Bring a Wrongful Death Action?
It is very important to remember that a wrongful death action cannot be filed by just anyone, regardless of how severe one’s grief may be. Only the personal representative of the decedent’s estate maintains the right to bring forth a wrongful death action (although damages recovered will be distributed to family members and beneficiaries). If the decedent died with a will, then the personal representative will be named in this document. If the decedent died without a will, then a personal representative, typically a spouse or grown child, will be appointed by the court.
Comparative Negligence in Wrongful Death Claims
While it may seem very unfair to consider the fault of a deceased person in a wrongful death claim, should a wrongful death case go to trial, the fault of all parties involved, including the decedent, will indeed be weighed. In West Virginia, in most cases, the rule of modified comparative negligence holds that any degree of fault on the part of the victim will lead to a reduction in the amount of recoverable damages in proportion to the percentage of fault the decedent shares. For example, if the court finds that your loved one was 10 percent to blame for their fatal accident and your wrongful death claim is valued at $1,000,000, you will only be able to recover $900,000, or 90 percent of the total damages.
The rule of comparative fault can be used to reduce the value of a case, often intentionally by insurance adjusters and defendants in a civil action. As such, we strongly recommend working with an experienced attorney who is familiar with this tactic and who knows how to effectively disprove allegations of fault made against the decedent and hold a defendant fully liable for the losses you have incurred because of your loved one’s death.
The Statute of Limitations in a Wrongful Death Action
When a loved one dies unexpectedly, it can take months, years, or longer for a surviving loved one to be able to manage their grief and experience a sense of normalcy again. The death can result in a large amount of anguish, including the development of depression in many cases. In addition to therapy, time is an essential part of healing.
But when it comes to filing a civil action, there is not a lot of time to take action. In fact, while it can feel impossible and even disrespectful to your deceased loved one, it is important to start the process of gathering evidence and investigating the fatal accident as soon as possible. Not only is the preservation of evidence key, but the clock on the statute of limitations is ticking.
The wrongful death statute of limitations in West Virginia in most circumstances is just two years from the date of the decedent’s death. Any claims that are initiated after this two-year time period can be thrown out of court. In some cases, the discovery rule can postpone the time limit until such time as a person reasonably discovered the wrongdoing of another caused the death of their loved one. By getting an experienced attorney involved early on, you can help ensure that your case is brought within the statute of limitations and that your right to recover compensation is protected and preserved.
Call Our West Virginia Wrongful Death Lawyers Today
We know that there is nothing easy about losing a loved one and then thinking about calling a lawyer. We want you to know that we empathize with you, understand what you’re going through, and are here to protect your best interests. When you call our firm, we will handle your claim from start to finish; including an investigation, the calculation of damages, the filing of a demand letter, and all negotiations. We manage your case so you can focus on the more important things in life; such as learning to cope and adjust without your loved one in your life.
If you have lost a family member and you think that someone else was to blame, please call our law firm directly today at 304-342-3106 or toll free at 1-800-342-3106, message us online, or stop by our Charleston office in person for a free, no obligation consultation.