A sudden wrongful death is one of the most devastating losses that a family can endure. Only the staggering financial cost comes even close to the emotional loss. Typically, a wrongful death basically means that a family’s pillar of emotional and financial support has suddenly been ripped away.
Like most states West Virginia has a wrongful death statute that covers the legal aspects of these situations. Here are some key takeaways from this law and the court cases built on it.
Basis for Wrongful Death
To have a legal claim for damages, some kind of negligence must have caused the wrongful death. Sometimes, this negligence is not always easy to see. For example, unintentional poisoning (mostly drug overdose) is the leading cause of injury-related death in West Virginia. While there may have been no outside negligence in the overdose itself, a doctor or pharmacy may have negligently provided the medicine which caused or contributed to the death.
Dangerous products cause many deaths as well. In these instances, manufacturers are often strictly liable for the damages they case. In other words, plaintiffs need not prove negligence or fault. They only need to show a connection between the death and the product’s use.
Who Can File
That last point brings up the issue of who can file a wrongful death suit. Each state has its own rules. In West Virginia, the following people can be plaintiffs:
- Personal representative (executor),
- A surviving spouse,
- Stepchild or child,
- Sibling or parent, or
- Any relative who was financially dependent on the decedent.
If the personal representative files a claim, the relatives may be entitled to part of the compensation. The law basically divides damages between economic losses, which belong to the estate, and noneconomic losses, which belong to the family.
The estate may receive compensation for its direct losses. These items include funeral and burial expenses and medical bills related to the decedent’s final illness or injury.
The family may receive compensation for other pecuniary losses. Money cannot make up for the loss, but it can make the loss easier to handle. Potential damages include:
- Loss of consortium (companionship),
- The decedent’s pain and suffering,
- Their own mental anguish, and
- Loss of future support.
West Virginia is one of the few states which allow wrongful death plaintiffs to recover damages for their own pain and suffering.
When to File
The statute of limitations in wrongful death cases is two years. But, the two-year period is not always easy to calculate. Many people contract a serious illness which goes into remission and then later returns. Other times, a statute of repose applies. A statute of repose applies in defective product cases and it may limit the amount of time to file.
Contributory negligence is the most common defense in West Virginia wrongful death cases. Essentially, the insurance company shifts blame for the death onto the victim. West Virginia is a modified comparative fault state with a 51 percent bar. For the plaintiff to recover a proportional share of damages, the tortfeasor (negligent actor) must be at least 51 percent responsible for the death. Other common defenses include assumption of the risk and sudden emergency.
Contact a lawyer for wrongful death today to get an expert claim evaluation at no charge.