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Valuing Wrongful Death Cases

Fairfax Injury Lawyer Brien Roche Addresses Valuing Wrongful Death

Brien Roche

Valuing wrongful death suits is very difficult. There is no fixed parameter as to what a wrongful death case is worth. 

In Virginia there was a time, approximately 40 years ago, 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 not allowing wrongful death actions or putting a cap on the recovery is that once a person is gone then there is no amount of money that is going to bring that person back and therefore there is no sense in allowing a recovery that conceivably would constitute a windfall.

The Virginia legislative body saw the error in that logic and agreed that in a wrongful death claim there frequently are beneficiaries who have suffered severe economic losses as a result of the passing of a loved one.  Those economic losses may consist of a loss of income that would have been provided by that loved one if the person had survived.

Valuing Wrongful Death Claims Is Not Easy

In large measure the value of a wrongful death action is going to depend upon the economic loss sustained by the beneficiaries and also what evidence can be presented as to the true loss by the beneficiaries in terms of grief and solace associated with the passing of the decedent. 

On the low end the wrongful death action typically would be worth at least $100,000.  On the high end there may not be any limit as to what it could be worth.

In general, wrongful death damages are designed to compensate the beneficiary and not to accumulate an estate.  What that means is that if the estate receives money from the case then that money is to pass pursuant to the will of the decedent or pursuant to intestacy if the decedent has no will.  That is not the purpose of a wrongful death action.  A wrongful death action is designed to benefit the statutory beneficiaries. 

The damages suffered by the beneficiaries may include monetary contributions and services rendered to them by the decedent.  For instance, if the decedent chopped wood every day for his mother then that service has some value and a number can be put on it.  Likewise, the cost of having someone do housework that had been formerly done by the decedent has value.  A number can be put on that and this is subject to an award of damages.

As to the non-economic damages consisting of sorrow and anguish, a jury may infer such damages.  There does not necessarily have to be proof of such.   The prudent wrongful death attorney, however, presents that 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 is the care and society that the decedent provided in the form of a personal relationship with the beneficiary.  That personal relationship has some value and the jury is entitled to put a number on that.

Where the relationship between the decedent and the beneficiary is frayed then evidence of that, likewise, can be admitted.  For instance, in one case warrants had been sworn out by the surviving wife and daughter against the decedent shortly before his passing.  That certainly 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 difficult for anyone to bear.  That grieving becomes especially difficult when the loved one is a child. Every wrongful death attorney is sensitive to this.

In interacting with someone who has experienced this loss it is important to understand that the person probably does want to talk about the loved one.  The person probably does want to hear the name of the loved one.  The person 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 other than to attempt to share with the person what you know about the loved one that may provoke a smile or a laugh.

Stay away from sharing your experience with grieving.  They are not interested in hearing about your grief.

What may be most important and most endearing to someone who has lost a loved one is simply for other people to be present and willing to listen. 

It is also important to appreciate the fact that the grieving process is not necessarily short term.  The grieving process may well go on for years.  It is not at all unusual that 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. 

The element of grief in a wrongful death action is important.  Aside from whatever financial losses the survivors may have suffered from the death of the loved one, the most overwhelming component of damage may well be what is known as grief and solace. 

The Washington Post on January 15, 2013 published an interesting 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 whose father had killed his natural mother.  Mother and father were not married.  The father was acquitted in the criminal case.  The child, of course, did not know exactly what had happened but certainly continued to love his father and saw him almost every day after the incident.  The child thereafter lived with the maternal grandmother.  When she noticed that the child was experiencing unusual behavior patterns, contrary to her own cultural inclinations, she decided to take the child in for grief counseling 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 was meant to signify that the animal was injured and served essentially as a signal to the child that it is okay to talk about his injury; particularly that it’s okay to talk about the pain he was experiencing.  The therapy that was provided was what is sometimes called “Play Therapy” where much of the session involves simply playing various games, whether it be with a ball or other types of games in order to build a rapport with the child and, over time, get the child talking.  After several therapy sessions, the therapist finally asked the child to write down his own negative feelings and likewise asked the Grandmother to write down her negative feelings.  Getting those feelings out in the open allowed both grandmother and child to better deal with their own sentiments about the loss.  Another tool that the therapist used 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 when he did that.  The idea being this type of activity allows some release of whatever resentment or hostility may be festering.

The Washington Post article reports that a clinical psychologist by the name of George Bonanno of Columbia conducted some studies back in the 1980s and determined 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 because they share a set of very distinctive symptoms including painful and persistent longing for the dead person.  It is those people who benefit most from this type of grief therapy.  They hopefully, over time, can then be allowed to simply move on. 

The physical condition and monetary condition of the decedent and the beneficiary is admissible to show how the award should be apportioned.  For instance, if the financial condition of one beneficiary is very poor then the loss of contribution from the decedent may be more meaningful.  If the health of the beneficiary is very poor and therefore the life expectancy is somewhat limited, that too may have an impact on the amount of damages necessary to fully compensate that beneficiary.

If a particular beneficiary has engaged in some wrongful act constituting contributory negligence that contributed to the fatal injury, then that may be a bar to that claim by that beneficiary.

Wrongful Death Damages Are Both Economic and Non-Economic

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. 

In another decision from the Virginia Supreme Court in 2000 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 such, 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, i.e. that the wages of the decedent in fact 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.

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 generally a good idea to have a guardian ad litem appointed to protect the interest of that child and also to make sure that the child’s recovery is maximized.

In some instances there may be beneficiaries who are unwilling to cooperate.  It is the role of the administrator in a case like that to exercise best efforts to achieve that cooperation.  If that cooperation cannot be achieved from the beneficiaries, it may be necessary to take the deposition of the beneficiary in order to present evidence as to what are the losses of that beneficiary.  Whatever the loss is of that beneficiary potentially increases the overall value of the case.  If that beneficiary decides to renounce whatever entitlement he or 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 a prerequesite to being a beneficiary. 

In addition, there may be beneficiaries of what is called the half-blood.  A beneficiary of the half-blood is someone who is a half-brother or a half-sister of the decedent.  In that instance, their entitlement is based upon that half-blood relationship. 

See other pages on wrongful death on this site and the pages on Wikipedia.

 

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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

Valuing wrongful death suits is very difficult. There is no fixed parameter as to what a wrongful death case is worth. 

In Virginia there was a time, approximately 40 years ago, 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 not allowing wrongful death actions or putting a cap on the recovery is that once a person is gone then there is no amount of money that is going to bring that person back and therefore there is no sense in allowing a recovery that conceivably would constitute a windfall.

The Virginia legislative body saw the error in that logic and agreed that in a wrongful death claim there frequently are beneficiaries who have suffered severe economic losses as a result of the passing of a loved one.  Those economic losses may consist of a loss of income that would have been provided by that loved one if the person had survived.

Valuing Wrongful Death Claims Is Not Easy

In large measure the value of a wrongful death action is going to depend upon the economic loss sustained by the beneficiaries and also what evidence can be presented as to the true loss by the beneficiaries in terms of grief and solace associated with the passing of the decedent. 

On the low end the wrongful death action typically would be worth at least $100,000.  On the high end there may not be any limit as to what it could be worth.

In general, wrongful death damages are designed to compensate the beneficiary and not to accumulate an estate.  What that means is that if the estate receives money from the case then that money is to pass pursuant to the will of the decedent or pursuant to intestacy if the decedent has no will.  That is not the purpose of a wrongful death action.  A wrongful death action is designed to benefit the statutory beneficiaries. 

The damages suffered by the beneficiaries may include monetary contributions and services rendered to them by the decedent.  For instance, if the decedent chopped wood every day for his mother then that service has some value and a number can be put on it.  Likewise, the cost of having someone do housework that had been formerly done by the decedent has value.  A number can be put on that and this is subject to an award of damages.

As to the non-economic damages consisting of sorrow and anguish, a jury may infer such damages.  There does not necessarily have to be proof of such.   The prudent wrongful death attorney, however, presents that 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 is the care and society that the decedent provided in the form of a personal relationship with the beneficiary.  That personal relationship has some value and the jury is entitled to put a number on that.

Where the relationship between the decedent and the beneficiary is frayed then evidence of that, likewise, can be admitted.  For instance, in one case warrants had been sworn out by the surviving wife and daughter against the decedent shortly before his passing.  That certainly 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 difficult for anyone to bear.  That grieving becomes especially difficult when the loved one is a child. Every wrongful death attorney is sensitive to this.

In interacting with someone who has experienced this loss it is important to understand that the person probably does want to talk about the loved one.  The person probably does want to hear the name of the loved one.  The person 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 other than to attempt to share with the person what you know about the loved one that may provoke a smile or a laugh.

Stay away from sharing your experience with grieving.  They are not interested in hearing about your grief.

What may be most important and most endearing to someone who has lost a loved one is simply for other people to be present and willing to listen. 

It is also important to appreciate the fact that the grieving process is not necessarily short term.  The grieving process may well go on for years.  It is not at all unusual that 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. 

The element of grief in a wrongful death action is important.  Aside from whatever financial losses the survivors may have suffered from the death of the loved one, the most overwhelming component of damage may well be what is known as grief and solace. 

The Washington Post on January 15, 2013 published an interesting 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 whose father had killed his natural mother.  Mother and father were not married.  The father was acquitted in the criminal case.  The child, of course, did not know exactly what had happened but certainly continued to love his father and saw him almost every day after the incident.  The child thereafter lived with the maternal grandmother.  When she noticed that the child was experiencing unusual behavior patterns, contrary to her own cultural inclinations, she decided to take the child in for grief counseling 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 was meant to signify that the animal was injured and served essentially as a signal to the child that it is okay to talk about his injury; particularly that it’s okay to talk about the pain he was experiencing.  The therapy that was provided was what is sometimes called “Play Therapy” where much of the session involves simply playing various games, whether it be with a ball or other types of games in order to build a rapport with the child and, over time, get the child talking.  After several therapy sessions, the therapist finally asked the child to write down his own negative feelings and likewise asked the Grandmother to write down her negative feelings.  Getting those feelings out in the open allowed both grandmother and child to better deal with their own sentiments about the loss.  Another tool that the therapist used 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 when he did that.  The idea being this type of activity allows some release of whatever resentment or hostility may be festering.

The Washington Post article reports that a clinical psychologist by the name of George Bonanno of Columbia conducted some studies back in the 1980s and determined 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 because they share a set of very distinctive symptoms including painful and persistent longing for the dead person.  It is those people who benefit most from this type of grief therapy.  They hopefully, over time, can then be allowed to simply move on. 

The physical condition and monetary condition of the decedent and the beneficiary is admissible to show how the award should be apportioned.  For instance, if the financial condition of one beneficiary is very poor then the loss of contribution from the decedent may be more meaningful.  If the health of the beneficiary is very poor and therefore the life expectancy is somewhat limited, that too may have an impact on the amount of damages necessary to fully compensate that beneficiary.

If a particular beneficiary has engaged in some wrongful act constituting contributory negligence that contributed to the fatal injury, then that may be a bar to that claim by that beneficiary.

Wrongful Death Damages Are Both Economic and Non-Economic

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. 

In another decision from the Virginia Supreme Court in 2000 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 such, 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, i.e. that the wages of the decedent in fact 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.

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 generally a good idea to have a guardian ad litem appointed to protect the interest of that child and also to make sure that the child’s recovery is maximized.

In some instances there may be beneficiaries who are unwilling to cooperate.  It is the role of the administrator in a case like that to exercise best efforts to achieve that cooperation.  If that cooperation cannot be achieved from the beneficiaries, it may be necessary to take the deposition of the beneficiary in order to present evidence as to what are the losses of that beneficiary.  Whatever the loss is of that beneficiary potentially increases the overall value of the case.  If that beneficiary decides to renounce whatever entitlement he or 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 a prerequesite to being a beneficiary. 

In addition, there may be beneficiaries of what is called the half-blood.  A beneficiary of the half-blood is someone who is a half-brother or a half-sister of the decedent.  In that instance, their entitlement is based upon that half-blood relationship. 

See other pages on wrongful death on this site and the pages on Wikipedia.

 

Contact Us For A Free Consultation

Contact Us For A Free Consultation