A Wrongful Death Lawyer must be armed with knowledge of the law, full control of the facts and compassion for the survivors. It is critical to be not only knowledgeable of personal injury law but also the scope of damages available under the pertinent wrongful death statute.
Wrongful death lawyer Brien Roche has over 40 years of trial experience and has garnered over $30,000,000.00 for his clients. If you are a survivor of someone who has lost their life due to the negligence of another in Virginia, Washington DC or Maryland, contact Brien Roche today.
If the injury suffered results in death then that person’s estate may assert what is known as a wrongful death claim. A wrongful death claim is a claim wherein the injured party rather than having simply suffered personal injury has actually died as a result of the conduct of the defendant.
A wrongful death claim may be based upon a negligence theory, a breach of warranty theory or based upon an intentional tort theory such as assault and battery. Wrongful death claims are a fairly recent phenomenon in that the English Common Law did not recognize wrongful death claims on the theory that once a person had died there was no amount of money that could compensate for the loss. As such, his claim died with him. The state legislatures, however, over the years have come to recognize that even though death may bring an end to the suffering and damages incurred by the decedent there may be persons left behind who have been damaged and may continue to be damaged in the future as a result of the passing of that person. Every state has its own wrongful death act. Typically the damages recoverable are damages consisting of solace and grief experienced by the survivors, loss of earnings suffered by the dependents left behind as a result of the death of the decedent and his subsequent inability to generate income, any medical expenses incurred by the decedent in the last illness and the funeral expenses.
Wrongful death can result from:
Injuries resulting in wrongful death may entitle the survivors to substantial benefits. Those benefits need to be fully calculated and aggressively pursued.
Wrongful death damages need to be brought to life. To appreciate the extent of one’s loss it is sometimes said that you need to look for the “violin”. What that means is that to appreciate the extent of loss for one that has suffered an arm amputation you need to inquire as to whether or not the person was a violin player. If so, then the loss is especially devastating. In developing the damages in a wrongful death claim you need to look for the violin.
There are several other considerations for the wrongful death lawyer:
Another element of damage for a claim like this is what is called hedonic damages i.e. the loss of enjoyment of life. To prove this type of claim there may be a need to put on expert testimony through a psychologist plus an economist who can testify as to hedonic damages. Evidence of how certain federal agencies evaluate human life can be seen in the fact that seatbelts save 1 person in 10,000 yet the cost of these seatbelts is dramatic. That cost figure may be evidence of the value of one life. The Occupational and Safety and Health Administration has placed a value of $2 million on an unknown American to justify the agency’s willingness to require safety devices in the work environment.
The wrongful death of a child is contrary to the natural order of things, it defies understanding. We are supposed to outlive our children, not vice versa.
In developing the extent of loss in a child death case it is important to:
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.
The death of an adult child may not be as compelling as that of the death of a younger child but the loss to the parent may be every bit as compelling. The parent has lost not only a child but also a friend.
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 as 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.
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. The statute of limitations in some states 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.
For more information on wrongful death see the other pages on this site dealing with all aspects of wrongful death and see the pages on Wikipedia.