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Who Can File a Wrongful Death Claim?

The grief and sudden, unexpected life change after the loss of a loved one is an emotional and difficult time, especially if you feel their death could have been prevented. Making decisions after a loved one’s death can seem insurmountable and too painful to bear. An attorney skilled in wrongful death cases can shoulder the burden and recover the compensation you deserve.

Our team of wrongful death attorneys at Prim Law in West Virginia can help you and your family hold the person responsible for their actions. To learn more about how we can help you and to schedule a free initial consultation, call the Prim Law office at 304-721-4619 or contact us online.

What is Wrongful Death?

Wrongful death is, according to West Virginia legislature, the death of a person “caused by wrongful act, neglect, or default” of another. Wrongful death claims are civil lawsuits that seek damages, or financial compensation, from the party at fault.

It is helpful to think of a wrongful death claim as similar to a personal injury claim. When an individual is harmed, they can file a personal injury claim themselves to recover damages. But when the individual harmed has died, another person can seek damages after their death in a wrongful death claim.

Who Can File a Wrongful Death Claim?

West Virginia law states that “the personal representative of such deceased person who has been duly appointed” can file a wrongful death claim. A personal representative is usually an executor or administrator in charge of managing the deceased’s estate. In other states, a surviving spouse, adult child, or family member can act as a personal representative, but this isn’t allowed in West Virginia. 

However, a court can award damages to the surviving spouse, children, parents, siblings, or other financially dependent family members of the deceased person as they see fit. If there are no survivors, the court distributes damages according to the person’s will.

What Damages Could I Receive?

State legislature outlines the damages one can receive in a wrongful death claim. You may be entitled to payments for:

  • Sorrow, mental anguish, and solace
  • Loss of companionship
  • Loss of income
  • Loss of care and protection
  • Medical care and treatments
  • Hospital bills
  • Funeral and burial expenses

There are two factors that can impact the amount of damages you receive in a wrongful death claim. One is West Virginia’s comparative fault standard, and the other is the cap on noneconomic damages.

Comparative fault

According to West Virginia’s comparative laws, how much the deceased person was at fault in the incident that led to the death may reduce the amount of damages awarded. 

For example, if a pedestrian is hit by a car when crossing the road and later dies from their injuries, a court may find the driver 100% at fault if they were speeding and failed to follow traffic laws. However, if the pedestrian was not paying attention and crossed the street at the wrong time, they may be found partially at fault. 

The pedestrian may be 20% at fault and the driver 80% at fault. If the total damages in the case came out to $100,000, the damages paid to the deceased’s estate would be $80,000, minus the $20,000 representing their percentage of fault. If they had been found 50% or more at fault, the estate would not be able to recover any damages at all.

Noneconomic damages cap

West Virginia does limit the amount of damages awarded in some cases. Their cap on noneconomic damages applies in wrongful death lawsuits against health care providers. The cap, or maximum amount of damages that can be recovered in a wrongful death case, cannot exceed $500,000. 

Noneconomic damages include damages like pain and suffering or sorrow, compared to economic damages, which cover loss of income or medical expenses.     

Statute of Limitations in West Virginia

The personal representative of a deceased person’s estate has two years from the date of their death to file a wrongful death lawsuit in West Virginia. If a lawsuit is filed after that two years, the court may dismiss the filing and not let it proceed.

There are some exceptions to this two-year statute of limitations, however. The two-year window may not begin on the date of their death, but on the date of their accident, or another significant date.

West Virginia Wrongful Death Attorneys Can Help

While no amount of money can make up for the loss of a loved one, easing financial stress and legal worries can help you and your family better adjust and heal. Let a wrongful death attorney at Prim Law fight for your legal rights so you can focus on recovering from your grief and moving forward.

Call the Prim Law office in Hurricane at 304-721-4619 or contact us online to schedule a free meeting with one of our lawyers. You can also like and follow Prim Law on Facebook for free legal resources and news updates.