At Curcio Law, we pride ourselves on representing those injured due to no fault of their own. We are committed to obtaining the compensation that our clients are legally entitled to so that they can rebuild their lives with dignity after being injured due to the careless behavior of another. Unfortunately, in the most catastrophic cases, we also represent families when the careless conduct of another leads to the death of a family member. In these devastating cases, we represent the family, or the beneficiaries, in a wrongful death action.
What Is a Wrongful Death Action?
A wrongful death action arises when the negligence, or absence of ordinary care, of another, causes the death of a person. Virginia Code § 8.01-50(A) details when a wrongful death action can be brought. In short, a wrongful death action can be brought in any situation where the deceased would have a claim against a negligent party for damages had they not died. As experienced personal injury attorneys, we have unfortunately represented families in several types of wrongful death actions, including motor vehicle-pedestrian collisions, intoxicated driver collisions, trucking, tractor-trailer collisions, and defective products cases, to name a few.
How Does a Wrongful Death Action Work?
In wrongful death cases, since the deceased cannot file the lawsuit, a personal representative can file the lawsuit on behalf of the deceased. Virginia Code § 64.2-454 details the process of appointing an administrator as a personal representative to bring an action for wrongful death on behalf of the deceased’s estate. While it can be anyone, we usually move to appoint a family member that was closest to the deceased as the administrator or a family member that lives nearest to where the incident occurred. A couple of other important things to keep in mind are that administrator can only be appointed 60 days after the death, and the administrator must be appointed in the same venue where the wrongful death lawsuit will be filed. If the wrongful death action has to be litigated, once the administrator is appointed, the case caption will look similar to the below:
What Are the Damages in a Wrongful Death Action?
In a perfect and just world, anyone injured due to no fault of their own would be able to waive a magic wand and immediately heal their injuries. Unfortunately, since that is not possible, the civil justice system is set up to award compensation to make the injured party whole again as best we can. In wrongful death cases, since compensation cannot be awarded to the deceased, the compensation is given to the deceased’s family to help them heal from the loss of their loved one. Virginia Code § 8.01-52 details the damages that are to be awarded to the family of the deceased. Those damages are:
- Sorrow, mental anguish, and solace, which may include society, companionship, comfort, guidance, kindly offices, and advice of the decedent;
- Compensation for the reasonably expected loss of (i) income of the decedent and (ii) services, protection, care, and assistance provided by the decedent;
- Medical expenses incurred by the decedent due to the incident causing their death;
- Reasonable funeral expenses; and
- Punitive damages.
The jury must consider these elements of damages when determining the amount of compensation needed to award the deceased’s family.
Who Receives the Compensation?
The beneficiaries of the deceased are awarded the compensation at the end of the wrongful death action. Virginia Code § 8.01-53 specifies the different classes of beneficiaries. The first class, or group, of family members that are entitled to be compensated in a wrongful death action, are the surviving spouse, the children of the deceased, and any grandchild of the deceased if the grandchild’s parents are deceased, and the parents of the deceased if the parents regularly received support from the deceased. If the deceased does not have any surviving spouse or children, then the class of beneficiaries that are entitled to be compensated are the parents and siblings. If the deceased lived in the same household as a relative at the time of their death, that relative is also to be compensated. The Virginia Code (§§ 8.01-53, 64.2-200) also details how the compensation should be awarded in situations where the deceased does not have any surviving person that fits into any of the above groups.
A couple of other things to consider when determining the beneficiaries that are entitled to compensation in a wrongful death action:
- Beneficiaries are determined at the date of the verdict. For example, if a parent of the deceased passes away before the conclusion of the wrongful death action, that parent is not considered a beneficiary for purposes of disbursing the wrongful death proceeds.
- The verdict in a wrongful death case may specify the amount of compensation for each beneficiary (Virginia Code § 8.01-54(A)).
- If the administrator of the estate and the negligent party reach a settlement of the wrongful death claim, the parties must petition the Court for approval of the settlement and the disbursement of that settlement to the beneficiaries.
- Half-siblings of the deceased are to be in the same class of beneficiaries as parents (Wolfe v. Lockhart, 195 Va. 479, 487 (1953)).
- Stepchildren and adopted children are considered potential beneficiaries (Virginia Code § 8.01-53(A)).
What Do I Do If I Know Someone That Was Wrongfully Killed?
Wrongful death actions are a statutory action. This means several Virginia Code sections must be followed to successfully pursue a wrongful death action. As such, it is important to hire an experienced personal injury attorney to represent the family of the deceased in any wrongful death case. At Curcio Law, we pride ourselves on helping families recover from these devastating losses of loved ones. If you or anyone you know has suffered a loss of a loved one due to the careless behavior of another, the attorneys at Curcio Law are here for you. Our team has extensive experience handling wrongful death cases, and we will help you understand the process. Call or text us at 703-836-3366 or contact us through our website.
Rakin Hamad joined Curcio Law as an associate in August 2018 after graduating from George Mason Law School. During law school, Rakin demonstrated his dedication to client advocacy and was a member of the trial advocacy association, the pro bono society, and the George Mason Law Review. His approach to the law mirrors the firm’s philosophy of treating each client with commitment, compassion and character. Contact Rakin at email@example.com.