Virginia Wrongful Death
Overview of Virginia Wrongful Death
Any wrongful death action in Virginia that is settled must be approved by the Court. If suit has already been filed, then the settlement can be approved within the context of that existing lawsuit. If suit has not been filed, then a new action has to be filed to obtain Court approval. The purpose of the Court approval is to assure that the administrator has properly fulfilled the assigned function.
In those instances where there is an issue of causation in the medical malpractice context expert testimony may be required. For instance, in a misdiagnosis case the plaintiff has to prove that the decedent would have survived but for the negligence of the doctor. To prove that, it is necessary to present expert testimony that there was at least a substantial possibility that the patient would have survived. Without that testimony the claim itself does not survive.
Where a mother suffers injury due to the malpractice of a physician resulting in fetus being still-born then the claim in that instance belongs to the mother. The mother may recover for the physical injury and mental suffering associated with the still-birth.
Personal Representative In Death Cases
In any wrongful death action a personal representative or administrator or executor must be appointed. The executor is a person designated by the decedent’s Will. An administrator is a person who is appointed by the Court in the absence of a Will. Both the executor and administrator collectively are referred to has the personal representative.
A wrongful death action is brought in the name of that personal representative who acts as the representative of the statutory beneficiaries of the wrongful death action. The personal representative, in that sense, is simply a nominal party and in his or her capacity as personal representative has no right to recover any money. All of the money will be disbursed to the beneficiaries. In some instances, the personal representative is also a beneficiary.
The fact that the personal representative is an estranged spouse of the decedent is not a bar to bringing such a claim. The estranged spouse may well be living separate and apart from the decedent at the time of death but legally is still the spouse. Without proof of desertion or abandonment that surviving spouse still has a basis for seeking recovery under the wrongful death act.
Sometimes in wrongful death situations the administrator is confronted with the issue of pursuing a wrongful death action or a survival action. If the personal representative was only appointed by the Court to bring the wrongful death action, then that is the only claim that the personal representative can bring. If the personal representative wants to bring both actions and then later on choose which one to pursue, the Letter of Appointment from the Court must so indicate.
Wrongful Death Statute of Limitations.
The statute of limitations in a wrongful death action is typically two years from the date of death in Virginia. If however the death occurred in another state, then it may be that the statute of limitations associated with that wrongful death statute controls. Normally, an action pending in the state of Virginia would be governed by the Virginia statute of limitations. That, however, may vary with a wrongful death action. With a wrongful death action the limitation period is deemed to be part of the cause of action. What that means is that the statute of limitations is literally a part of the claim and therefore the state law where the death occurred is going to be controlling. If the death occurred in the state of Florida, then the statute of limitations for a wrongful death action in Florida may govern even though the lawsuit is filed in Virginia.
For any action that is filed in the state of Virginia it is critical to keep in mind that an administrator or personal representative must be appointed for the estate before the action can be filed. If the administrator is not properly appointed, then that may mean that there is no proper action filed and therefore the statute of limitations was never tolled or stopped from running.
Employer Liability for Wrongful Death
Recently an Illinois Appellate Court ruled an employer must defend against a wrongful death lawsuit charging negligence in their failure to investigate death threats one of its employees had emailed to his family from his work computer. In this alleged negligence case , the company failed to protect the employee’s family from his threatened harm, resulting in their death.
Employer Liability for Computer Use
As an employee of the Joyce Meyer Ministries (JMM) from 2000 to 2009, Christopher Coleman held security positions within that firm. Beginning in 2008 while on the job, Coleman used his work computer to send death threats via email to himself, his wife and children which came to fruition when on May 5, 2009, he killed them in their home.
The administrator of the family’s estate, Regions Bank, filed a wrongful death lawsuit against JMM. Regions’ lawyers claimed they were negligent in failing to protect Sheri Coleman and her two sons from Mr. Coleman’s threatened harm.
Regions asserted that JMM had an electronic communications policy which prohibited employees from using work computers to send harassing/abusive emails among other things. Having this policy alone permitted JMM to monitor and view any emails sent from its computers and allowed the company to discipline its employees if they violated this policy. Additionally Regions alleged that JMM was aware that Coleman used his work computer to email death threats to his family and their failure to protect Coleman’s family was due to their failure to enforce their own electronic communications policy. In that, they failed to discipline Coleman for violating the very policy that they established.
The Appellate Court came to the conclusion that Regions’ Complaint, if true, established that JMM was aware of the death threats that Coleman made to his family while using JMM’s work computer. Based on JMM’s own electronic communications policy, JMM voluntarily took on the responsibility to investigate those threats and protect the family from Coleman’s threatened harm.
While the trial court’s decision had been to dismiss the negligence claim, the Appellate Court reversed that decision and sent the case back to the trial court for litigation of the merits of that claim.
Wrongful Death Employer Liability and Policy Enforcement
This case puts employer on notice that when they undertake to implement such a policy they also have responsibility to enforce it even if they are not aware of violations of their policy. It is increasingly more important that employers be vigilant in monitoring employee activity on work-related computers and electronics. If activity is suspicious the employer should immediately investigate and take necessary action.
Teenage Wrongful Death
Teenage wrongful death is on the rise based on some figures from the year 2012. The 2012 figures are compared to the year 2011, which was a low point in teenage highway deaths so the figures may be somewhat misleading. In any event, what is reported in a Washington Post article of February 27, 2013 is that the death rate of 16 and 17 year olds jumped 19 percent nationwide as a result of highway motor vehicle deaths.
Overall, highway deaths over all age groups increased in 2012. In years prior to 2012 there had been a steady decline in such deaths which had been credited to vehicle safety improvements and also law enforcement crackdowns on drunk driving and distracted driving.
Most states including Virginia, DC and Maryland have what are called graduated licensing laws which put restrictions on teenagers in terms of the number of passengers they can carry and also restrictions on nighttime driving.
The researcher who compiled the data in this Washington Post article reports that the increase in highway deaths of 16 and 17 year olds may be due to the fact that the positive effects of these graduated driving laws have leveled off.