Personal Injury-Wrongful Death
Brien Roche
Wrongful death claims are a fairly recent phenomenon. The English Common Law did not allow wrongful death claims. The theory was that once a person had died there was no amount of money that could pay for the loss. As a result, the claim died. However over time state legislatures recognized that even though death brings an end to the suffering of the decedent there may be persons left behind. These people have been damaged. In addition they continue to be damaged into the future.
Personal Injury-Wrongful Death Damages Are Economic or Non-Economic
Every state has its own wrongful death act. The damages recoverable may be economic or non economic. The economic damages are the loss of income, the value of the loss of services from the passing of the decedent and medical expenses incurred by the decedent in the last illness and the funeral expenses. The non economic damages are the solace and grief of the survivors.
Theories of recovery
Wrongful death can result from:
Wrongful death survivors may receive substantial benefits. Those benefits need to be defined and pursued. Call, or contact us for a free consult.
Personal Injury-Wrongful Death Damage Proof
Wrongful death damages need to be brought to life. To grasp the extent of one’s loss it is sometimes said that you need to look for the “violin”. To get the extent of loss suffered by a person who has lost an arm you need to know if that person was a violin player. If so, picture that loss. In other words you need to look for the violin.
There are several factors to consider:
No Delay
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- These claims should be brought to trial as quickly as possible. The survivors change. They adjust. They move on to new relationships. As a result the case needs to be presented to a jury before that happens.
Life Expectancy
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- The decedent’s life expectancy and work life expectancy have to be proven. Certainly the medical history of the decedent and the medical history of the beneficiaries need to be looked at.
Losses
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- What is the economic loss suffered by the survivor? This is seen in the loss of earnings and in the value of the services the decedent performed for the family. The loss of those earnings is calculated based on a gross value. That is, there is no deduction for consumption, taxes, etc. Rather it is the gross earnings that the court is to look at. Hoge Administrator v. Anderson, 200 Va. 364 (1958); Dailey’s Administrator v. Baker, 18 Va. Cir. 469 (1990); Norfolk Southern v. Rayburn, 213 Va. 812 (1973) A claim for loss of services is for the tasks performed by the decedent. Someone else now has to perform those tasks. The reasonable cost of replacing those services can be computed. For instance, what does it cost to replace the services of a stay at home parent?
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- To portray the extent of grief and bereavement paint a picture of the decedent’s home. Show the decedent’s life through pictures. In addition visit the decedent’s gravesite. How far does the family have to travel to visit.
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- The use of a grief expert may help the jury feel what the survivors have gone through. Also it will help portray what they will go through in the future.
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- The grief expert may want to give the Minnesota Multiphasic Personality Inventory. This will help to gauge the degree of each survivor’s emotional damage.
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- The pain and suffering of the decedent may be relevant to show the grief of those left behind.
Survival Claim
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- Did the decedent have any conscious pain and suffering before death.
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- Is there a survival claim? This is the personal injury claim that the decedent had before death. An autopsy will show not only how death occurred but also when it occurred. Also it may show what the decedent experienced up to the time of death.
Resources
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- Some books that may help with these ideas are Motherless Daughters, The Legacy of Loss by Hope Adelman and The Loss That is Forever; The Lifelong Impact of Early Death of a Mother or Father by Maxine Harris.
Hedonic
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- Another element of damage is what is called hedonic damages. This the loss of enjoyment of life. This may require expert testimony through a psychologist and economist. 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. Also OSHA has placed a value of $2 million on an unknown American. This is used to explain their willingness to require safety devices in the work environment.
Call, or contact us for a free consult.
Personal Injury-Wrongful Death Of A Child Requires Developing The Case
The wrongful death of a child is against the natural order of things. It defies understanding. Furthermore we are supposed to outlive our children. Not vice versa.
In developing the extent of loss in a child death case you need to:
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- Gather all the health records from birth of the child.
- Gather all school records and employment records, if any.
- Put together whatever documents exists as to the child’s activities.
- Gather photographs and videos of the child.
- Also put together vignettes of the child. These will provide powerful images of what the child was like. Spend time with the family. Get a feeling of the extent of the loss. These vignettes may be funny. A mother’s tears when she looks at her son’s little league uniform. This may be a reminder of the time when her son ran the wrong way on the base path. Both a humorous episode and a tearful one.
- Finally when the defense argues the death of an infant is worth less than that of an older child describe the parent’s plans for the child. Describe their excitement at birth. Show photos of the pregnancy and pictures of the baby shower and even the baby announcement. All of those are powerful visual images.
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Personal Injury-Wrongful Death of a Teenager
Teenage wrongful death is on the rise. A Washington Post article of February 27, 2013 reports the death rate of 16 and 17 year-olds jumped 19 percent nationwide. This was a result of highway deaths.
Most states including Virginia, DC and Maryland have what are called graduated licensing laws. They put limits on the number of passengers teenagers can carry. Also they have limits on nighttime driving. The increase in highway deaths of 16 and 17 year-olds may be due to the the positive effects of these graduated driving laws having leveled off.
Personal Injury-Wrongful Death of An Adult Child
The death of an adult child may not be as compelling as that of the of a younger child. However the loss to the parent may be every bit as compelling. The parent has lost not only a child but also a friend. Call, or contact us for a free consult.
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 Will. An administrator is a person who is appointed by the Court in the absence of a Will. Both the executor and administrator are referred to as the personal representative. In other words without the proper appointment of such a person a wrongful death or survival action is a nullity.
The case is brought in the name of that personal representative. That person acts as the representative of the people to benefit from the suit. Also the personal representative may be a beneficiary. Any proceeds of the case will be paid to the beneficiaries. In contrast if there is a recovery for medical bills then that money could come in to the estate to be disbursed per the will or if no will then per state law.
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 the spouse. However without proof of desertion or abandonment that surviving spouse has a basis for seeking recovery under the wrongful death act.
If a survival claim is also to be pursued the letter or order of appointment must allow such.
Potential Statutes
The potential statutes under which to qualify for wrongful death and/or survival are Virginia Code § 64.2-454, 500, 502, 519 or 8.01-50. However if contemplating a claim under both wrongful death and survival, then the first of these Code sections should be the basis for qualification of the personal representative.
Any qualification under Virginia Code § 64.2-454 has to be looked at carefully. The Code section says that the clerk can appoint an administrator in that jurisdiction where jurisdiction and venue would be proper as to the action to be filed. Once the probate clerk makes the appointment of an administrator, then arguably that order after 21 days becomes final and therefore cannot be attacked. Andrews v. Avory, 55 Va. 229 (1858) That may make that appointment bullet-proof unless the appointment itself is a nullity because the probate clerk didn’t have subject matter jurisdiction. The appointment of an administrator by a probate clerk typically is considered to be an issue of subject matter jurisdiction i.e., does the clerk have the underlying authority to make the appointment. If either jurisdiction or venue is lacking, then the clerk may not have that authority. If venue is attacked, then it may be that under Virginia Code § 8.01-262(3), there is a practical nexus in that the plaintiffs live in that jurisdiction. The point to be made is that appointments under this Code section needs to be looked at carefully because if it turns out the probate clerk did not have subject matter jurisdiction to make the appointment, then the entire case fails.
Virginia Code § 34-28.1 does exempt personal injury and wrongful death awards from creditor process. This however does not exempt the estate from claims by a lost heir. There are also exceptions for certain types of liens.
Wrongful Death Statute of Limitations.
The statute of limitations in a wrongful death action is two years from the date of death in Virginia. It is possible that could be extended by one year. However if the death occurred in another state, then it may be that the statute for that wrongful death act controls. The statute of limitations in some states is literally a part of the claim. Therefore the state law where the death occurred is going to be controlling.
Call or contact us for a free consult. So for more information on wrongful death see the other pages on this site dealing with all aspects of wrongful death. Also see the pages on Wikipedia.