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Valuing Wrongful Death Cases

Fairfax Injury Lawyer Brien Roche Addresses Valuing Wrongful Death

Brien Roche

No Fixed Guide

Valuing wrongful death suits is tough. There is no fixed guide as to what a wrongful death case is worth. 

In Virginia there was a time when there was a $25,000 cap on what could be recovered in a wrongful death action.  Prior to that, wrongful death actions were not even allowed.  The logic of this was that once a person is gone then there is no amount of money that is going to bring that person back. Therefore there is no sense in allowing a windfall.

There was error in that logic. In a wrongful death case there are losses. They may be severe economic losses from the passing of a loved one.  Those losses are loss of income that would have been provided by that loved one. In addition there me a loss of services. Those services have a value. There are other losses too.

Valuing Wrongful Death Claims Is Not Easy

The damages are economic and non-economic. The economic damages can be stated in a dollar amount. They make the value more certain. The non-economic damages are less certain.

Money Losses

Wrongful death damages are to pay the beneficiary for their loss. It is not to build up an estate for payment to heirs.   In other words if the estate receives money from the case then that money is to pass through the will or intestacy. That is not the purpose of a wrongful death action.  Precise amounts of money are awarded to each beneficiary for the loss they have proven.

The losses may in money or services from the decedent.  For instance, if the decedent chopped wood every day for his mother then that service has some value. A number can be put on it.  Likewise, the cost of having someone do housework that had been done by the decedent has value.  A number can be put on that. Also the decedent’s income is used to measure the loss to family members who benefited from that income. Call, or contact us for a free consult.

Non- Money Losses

As to the non-economic damages consisting of sorrow and anguish, a jury may infer such damages.  There does not have to be proof of such.   However there should be proof by having the beneficiaries testify as to the impact of the decedent’s passing.  

A component of those damages are what are called care and society.  Care and society defines the personal relationship with the beneficiary.  That personal relationship has value. The jury is to put a number on that. See another page page on this site as to proving that.

Likewise where the relationship between the decedent and a beneficiary is frayed then evidence of that can be admitted.  For instance, in one case warrants had been sworn out by the surviving wife and daughter against the decedent. This was shortly before his passing.   Certainly that is relevant to show the nature of the relationship. 

Grieving Is An Important Component Of A Wrongful Death Action

The loss of a loved one is tough for anyone to bear. That person probably does want to talk about the loved one.  He probably does want to hear the name of the loved one.  He probably does want to hear stories about the loved one that you may be able to relate. 

There is no right thing to say to someone who is experiencing this type of grief. The best you can do is to attempt to share with the person what you know about the loved one that may provoke a smile or a laugh. They are not interested in hearing about your grief.

Long Term Grief

The grieving process is not necessarily short term.  Grieving may go on for years.  The first or second anniversary of the death may be more difficult than the time immediately after the death.  This is the time when some empathetic involvement may be most appreciated. 

Getting Beyond The Grief

The Washington Post on January 15, 2013 published an article dealing with an organization in Washington, DC that provides grief counseling.  The name of that organization is the Wendt Center.  The article was focused on a young boy. His father had killed his natural mother.  Mother and father were not married.  The father was acquitted in the criminal case.  The child did not know exactly what had happened but continued to love his father. He saw him almost every day after the incident.  The child thereafter lived with the maternal grandmother.  She noticed that the child was experiencing unusual behavior patterns. Contrary to her own cultural inclinations, she took the child for grief counseling. This was at the Wendt Center. 

One of the first things that the grandmother noticed is that in one of the therapy rooms a construction paper butterfly decorated the door.  The therapist in the room was holding a tan fox puppet with a Band-Aid clinging to its matted fur.  The Band-Aid signified that the animal was injured. It was a signal to the child that it is okay to talk about his injury. It’s okay to talk about the pain he was having.  The therapy is sometimes called “Play Therapy”. Much of each session involves playing various games. It may be with a ball or other types of games. The goal is to build a rapport with the child. Over time the child starts talking. Call, or contact us for a free consult.

Letting Go

After several sessions, the therapist finally asked the child to write down his own negative feelings. Likewise the grandmother was to write down her negative feelings.  Getting those feelings out in the open allowed both grandmother and child to deal with them.  Another tool was to allow the child to hurl lumps of clay against the office wall.  Each time the child threw a lump of clay, he was asked to express what he was feeling.  The idea being this allows some release of whatever may be festering.

The Washington Post article reports some studies by a George Bonanno, a psychologist. He stated that probably 85% of people who suffer a loss such as this do quite well without therapy.  It is about 15% that probably do need therapy. They share a set of very distinct symptoms including painful and persistent longing for the dead person.  It is those people who benefit most from grief therapy.  They hopefully, over time, can then be allowed to simply move on. 

Wrongful Death Damages From reported Cases

In 2008 the Virginia Supreme Court dealt with a case of where the marriage of the decedent was dysfunctional.  In spite of that, the Court properly submitted to the jury the issue of awarding the surviving wife damages for the decedent’s loss of income, services, protection, care and assistance.  The Court refused to allow an award to the wife for solace since the marriage was dysfunctional. 

The Virginia Supreme Court in 2000 dealt with a case where the jury returned a verdict for the precise amount of the funeral expenses.  The jury awarded no money for sorrow, mental anguish and solace.  The Court found that verdict was inadequate as a matter of law. 

In a 1972 case the Virginia Supreme Court dealt with an issue of where the decedent was totally disabled prior to death.  He supported his children with food stamps and a veteran’s pension.  The dependents continued to receive his social security and veterans benefits after his death.  As a result there was no financial loss. 

In terms of proving future loss of income, typically the life expectancy table is admissible into evidence.  In order to prove loss of income it is not required that the survivor prove dependency on the decedent.  There must, however, be some proof of actual loss to the beneficiary. This comes by showing the wages of the decedent would have been used for the benefit of the survivor.

Wrongful Death Distribution

In a wrongful death action the distribution of damages is governed by the State Code.  The class of beneficiaries is fixed as of the date of verdict, not as of the date of death.  That is potentially significant if the decedent’s spouse is pregnant at the time of death. Call, or contact us for a free consult.

Status Of Beneficiaries

In one decision reported by the Virginia Supreme Court a child who was adopted after the death of the decedent but before the jury verdict was allowed to recover as a statutory beneficiary.

As to any beneficiaries that are minors, it is a good idea to have a guardian ad litem appointed to protect the interest of that child.

In some instances there may be beneficiaries who are unwilling to cooperate.  It is the role of the administrator to exercise best efforts to achieve that cooperation.  It may be necessary to take the deposition of the beneficiary to present evidence as to the losses of that beneficiary.  Whatever the loss is potentially increases the overall value of the case.  If that beneficiary decides to renounce any rights she may have, then that share would go to the other beneficiaries.

In identifying potential beneficiaries, there may be some children that are legitimate children and others that are illegitimate.  Legitimacy is not required to be a beneficiary.  In addition a beneficiary of the half-blood, a half-brother or sister, can recover.

Condition of Beneficiaries

The physical and financial shape of the decedent and beneficiary gives guidance to show how the award should be allotted. For instance, if one beneficiary is very poor then the loss from the decedent may have more impact.  If the health of the beneficiary is poor and life expectancy limited, that too is a factor. If a beneficiary is guilty of some fault that caused the fatal injury, then that may be a bar to that claim.
Call, or contact us for a free consult. In addition see other pages on wrongful death on this site. Also see the pages on Wikipedia. Also as to preserving your survival claim see the blog on that issue.

 

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Contact Us For A Free Consultation

Valuing Wrongful Death Cases

Fairfax Injury Lawyer Brien Roche Addresses Valuing Wrongful Death

Brien Roche

No Fixed Guide

Valuing wrongful death suits is tough. There is no fixed guide as to what a wrongful death case is worth. 

In Virginia there was a time when there was a $25,000 cap on what could be recovered in a wrongful death action.  Prior to that, wrongful death actions were not even allowed.  The logic of this was that once a person is gone then there is no amount of money that is going to bring that person back. Therefore there is no sense in allowing a windfall.

There was error in that logic. In a wrongful death case there are losses. They may be severe economic losses from the passing of a loved one.  Those losses are loss of income that would have been provided by that loved one. In addition there me a loss of services. Those services have a value. There are other losses too.

Valuing Wrongful Death Claims Is Not Easy

The damages are economic and non-economic. The economic damages can be stated in a dollar amount. They make the value more certain. The non-economic damages are less certain.

Money Losses

Wrongful death damages are to pay the beneficiary for their loss. It is not to build up an estate for payment to heirs.   In other words if the estate receives money from the case then that money is to pass through the will or intestacy. That is not the purpose of a wrongful death action.  Precise amounts of money are awarded to each beneficiary for the loss they have proven.

The losses may in money or services from the decedent.  For instance, if the decedent chopped wood every day for his mother then that service has some value. A number can be put on it.  Likewise, the cost of having someone do housework that had been done by the decedent has value.  A number can be put on that. Also the decedent’s income is used to measure the loss to family members who benefited from that income. Call, or contact us for a free consult.

Non- Money Losses

As to the non-economic damages consisting of sorrow and anguish, a jury may infer such damages.  There does not have to be proof of such.   However there should be proof by having the beneficiaries testify as to the impact of the decedent’s passing.  

A component of those damages are what are called care and society.  Care and society defines the personal relationship with the beneficiary.  That personal relationship has value. The jury is to put a number on that. See another page page on this site as to proving that.

Likewise where the relationship between the decedent and a beneficiary is frayed then evidence of that can be admitted.  For instance, in one case warrants had been sworn out by the surviving wife and daughter against the decedent. This was shortly before his passing.   Certainly that is relevant to show the nature of the relationship. 

Grieving Is An Important Component Of A Wrongful Death Action

The loss of a loved one is tough for anyone to bear. That person probably does want to talk about the loved one.  He probably does want to hear the name of the loved one.  He probably does want to hear stories about the loved one that you may be able to relate. 

There is no right thing to say to someone who is experiencing this type of grief. The best you can do is to attempt to share with the person what you know about the loved one that may provoke a smile or a laugh. They are not interested in hearing about your grief.

Long Term Grief

The grieving process is not necessarily short term.  Grieving may go on for years.  The first or second anniversary of the death may be more difficult than the time immediately after the death.  This is the time when some empathetic involvement may be most appreciated. 

Getting Beyond The Grief

The Washington Post on January 15, 2013 published an article dealing with an organization in Washington, DC that provides grief counseling.  The name of that organization is the Wendt Center.  The article was focused on a young boy. His father had killed his natural mother.  Mother and father were not married.  The father was acquitted in the criminal case.  The child did not know exactly what had happened but continued to love his father. He saw him almost every day after the incident.  The child thereafter lived with the maternal grandmother.  She noticed that the child was experiencing unusual behavior patterns. Contrary to her own cultural inclinations, she took the child for grief counseling. This was at the Wendt Center. 

One of the first things that the grandmother noticed is that in one of the therapy rooms a construction paper butterfly decorated the door.  The therapist in the room was holding a tan fox puppet with a Band-Aid clinging to its matted fur.  The Band-Aid signified that the animal was injured. It was a signal to the child that it is okay to talk about his injury. It’s okay to talk about the pain he was having.  The therapy is sometimes called “Play Therapy”. Much of each session involves playing various games. It may be with a ball or other types of games. The goal is to build a rapport with the child. Over time the child starts talking. Call, or contact us for a free consult.

Letting Go

After several sessions, the therapist finally asked the child to write down his own negative feelings. Likewise the grandmother was to write down her negative feelings.  Getting those feelings out in the open allowed both grandmother and child to deal with them.  Another tool was to allow the child to hurl lumps of clay against the office wall.  Each time the child threw a lump of clay, he was asked to express what he was feeling.  The idea being this allows some release of whatever may be festering.

The Washington Post article reports some studies by a George Bonanno, a psychologist. He stated that probably 85% of people who suffer a loss such as this do quite well without therapy.  It is about 15% that probably do need therapy. They share a set of very distinct symptoms including painful and persistent longing for the dead person.  It is those people who benefit most from grief therapy.  They hopefully, over time, can then be allowed to simply move on. 

Wrongful Death Damages From reported Cases

In 2008 the Virginia Supreme Court dealt with a case of where the marriage of the decedent was dysfunctional.  In spite of that, the Court properly submitted to the jury the issue of awarding the surviving wife damages for the decedent’s loss of income, services, protection, care and assistance.  The Court refused to allow an award to the wife for solace since the marriage was dysfunctional. 

The Virginia Supreme Court in 2000 dealt with a case where the jury returned a verdict for the precise amount of the funeral expenses.  The jury awarded no money for sorrow, mental anguish and solace.  The Court found that verdict was inadequate as a matter of law. 

In a 1972 case the Virginia Supreme Court dealt with an issue of where the decedent was totally disabled prior to death.  He supported his children with food stamps and a veteran’s pension.  The dependents continued to receive his social security and veterans benefits after his death.  As a result there was no financial loss. 

In terms of proving future loss of income, typically the life expectancy table is admissible into evidence.  In order to prove loss of income it is not required that the survivor prove dependency on the decedent.  There must, however, be some proof of actual loss to the beneficiary. This comes by showing the wages of the decedent would have been used for the benefit of the survivor.

Wrongful Death Distribution

In a wrongful death action the distribution of damages is governed by the State Code.  The class of beneficiaries is fixed as of the date of verdict, not as of the date of death.  That is potentially significant if the decedent’s spouse is pregnant at the time of death. Call, or contact us for a free consult.

Status Of Beneficiaries

In one decision reported by the Virginia Supreme Court a child who was adopted after the death of the decedent but before the jury verdict was allowed to recover as a statutory beneficiary.

As to any beneficiaries that are minors, it is a good idea to have a guardian ad litem appointed to protect the interest of that child.

In some instances there may be beneficiaries who are unwilling to cooperate.  It is the role of the administrator to exercise best efforts to achieve that cooperation.  It may be necessary to take the deposition of the beneficiary to present evidence as to the losses of that beneficiary.  Whatever the loss is potentially increases the overall value of the case.  If that beneficiary decides to renounce any rights she may have, then that share would go to the other beneficiaries.

In identifying potential beneficiaries, there may be some children that are legitimate children and others that are illegitimate.  Legitimacy is not required to be a beneficiary.  In addition a beneficiary of the half-blood, a half-brother or sister, can recover.

Condition of Beneficiaries

The physical and financial shape of the decedent and beneficiary gives guidance to show how the award should be allotted. For instance, if one beneficiary is very poor then the loss from the decedent may have more impact.  If the health of the beneficiary is poor and life expectancy limited, that too is a factor. If a beneficiary is guilty of some fault that caused the fatal injury, then that may be a bar to that claim.
Call, or contact us for a free consult. In addition see other pages on wrongful death on this site. Also see the pages on Wikipedia. Also as to preserving your survival claim see the blog on that issue.

 

Contact Us For A Free Consultation

Contact Us For A Free Consultation