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As personal injury trial lawyers, we are occasionally faced with the question of what happens to a claim if the injured person dies before the case is resolved. A similar question is what happens if the person causing the injury dies before the case is resolved. 

Historically, the death of a party was a potential bar to pursuing a claim, resulting in situations where an injured party was unable to recover on his or her claim. The unfairness of that result has been recognized, and the law has evolved so that now a personal injury claim survives the death of either the injured person or the negligent person causing the injury.  

Virginia Code § 8.01-25 (1950) provides that “Every cause of action whether legal or equitable, which is cognizable in the Commonwealth of Virginia, shall survive either the death of the person against whom the cause of action is or may be asserted, or the death of the person in whose favor the cause of action existed, or the death of both such persons.”

While the death of a party no longer extinguishes the claim, it does create some procedural and practical issues that the personal injury lawyer must navigate on the client’s behalf. First, as a lawsuit cannot be brought or maintained by or against a deceased person, someone must be appointed by the court to serve as the deceased person’s personal representative. Usually, a close family member agrees to serve in that role. Once the appointment is made, the case can be filed by the personal representative on behalf of the deceased person’s estate. If the plaintiff dies while the case is pending in court, a personal representative must be appointed who is then substituted as the plaintiff and the case continues on behalf of deceased person’s estate.

The same procedure is required if the person against whom the claim is asserted (the defendant) dies before the suit is filed or after the lawsuit is filed. Accomplishing the appointment of a personal representative for a defendant in the pre-suit context is a bit tricky as the plaintiff’s lawyer must find someone willing to serve. If a suit is pending when the defendant dies, the defense lawyer typically arranges for a close family member of the deceased to serve in that capacity. 

A practical challenge arises for the claimant’s lawyer regarding damages when a case involving a deceased person does not settle and goes to trial. That is, there is a real risk that the verdict will be lower and will not fully and fairly compensate the injured party. This risk plays out in one of two ways. First, if the injured person is deceased, the jury is likely to consider the purpose or benefit of awarding money to a deceased person’s estate and whether it makes sense to do so. Conversely, suppose the deceased person caused the initial harm. In that case, the jury is likely to feel sympathy for him or her or question the fairness of holding them responsible when not present to defend themselves and consequently return a lower verdict. 

The experienced personal injury lawyer knows to address the issue of the death of a party affecting the jury’s decision on damages by focusing on and discussing it during jury selection, in the opening statement, in the closing argument, and by requesting jury instructions that address the issue. 

As our recent blog explains, if a person dies as a result of the negligence of another, a wrongful death action is the legally proper and exclusive claim to pursue for compensation. See Virginia Code § 8.01-56, (1950). However, what is the proper action to bring if it is unclear whether the injured person died as a result of the injury or if a defendant disputes that the injury caused the death? Whether the claimant died due to the injuries caused by the negligent party is significant as it determines the nature of the recoverable damages. As we have written about before in a negligence claim where a person is injured, the injured party is entitled to be compensated for their incurred medical bills, physical injuries, physical and emotional pain and suffering, inconvenience, and lost wages.

Rakin makes clear that in a wrongful death action, the recoverable damages are to compensate close family members of the deceased due primarily to their emotional hurt and losses. Fortunately, Virginia law makes clear that it is proper to bring a survival action seeking personal injury damages and a wrongful death action seeking wrongful death damages in the same case. In the situation where both a survival action and a wrongful death action are pursued in the same case, the plaintiff’s lawyer must elect which action to ultimately recover on as there can be but one recovery for the damages caused by the defendant’s negligence. As astutely ruled by the Virginia Supreme Court in Centra Health, Inc. v. Mullins, 277 Va. 59 (2009), the choice of which action to recover on, and hence the damages to be recovered, does not have to be made until after the jury has returned its verdict. 

The death of a party creates legal and practical issues that must be addressed. If you or a loved have such a claim, you are wise to consult experienced personal injury lawyers such as Curcio Law, as we are always happy to help.   

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