Everyone processes grief in different ways. Some seek out the comfort of close friends, while others prefer to be alone with their thoughts. It is always a struggle to make sense of the loss of a loved one, and that issue is even more complex when the death was caused by someone else’s negligence. In those situations, you are entitled to seek compensation under a wrongful death claim.
The West Virginia legislature defines a wrongful death as:
“Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action to recover damages in respect thereof, then, and in every such case, the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to murder in the first or second degree, or manslaughter.”
This type of claim can be challenging to prevail if you were to pursue it on your own. That is why you want to retain the services of a skilled wrongful death lawyer who understands the evidence standards you need to present in order to achieve your desired compensation.
Who Can File a Wrongful Death Claim?
A wrongful death claim replaces a personal injury claim that the decedent could have filed if they had lived. In order to file the claim, there needs to be a direct relation to that person. West Virginia law dictates that the surviving spouse is the primary beneficiary. After the spouse, these are people who can be awarded compensation.
- Children, including stepchildren and adopted children
- Parents
- Siblings
- Any dependents who are not relatives depended on the decedent’s financial support
It is important to remember that there can only be one wrongful death claim filed on behalf of the survivors. If the claim moves to a civil complaint, West Virginia law allows the jury in the trial to determine how the settlement will be distributed among the surviving family members.
Types of Compensation Survivors are Entitled To
Whenever there is a large settlement in a wrongful death case, it will make the news. A perfect example was reported by WCHS TV when West Virginia State Police agreed to settle a wrongful death lawsuit for $1 million to the surviving family of a man who died while in custody.
Not every wrongful death settlement will make the news, but those numbers will always be grounded in a legal framework. In other words, the amount isn’t arbitrary. They begin with any of the actual costs associated with the wrongful death, such as medical expenses incurred after the injury but before the death. The surviving family will also be compensated for all funeral expenses.
After the quantifiable costs, the surviving family is entitled to seek compensation for the following:
Mental Anguish
The loss of a loved one will have an impact on the entire family. That situation creates mental anguish that is immediate and can continue for a long time.
Loss of Society and Companionship
Along with the mental anguish, the category of loss of society and companionship refers to all the things that the family will miss out on. That includes companionship for the spouse and guidance for the children.
Loss of Services and Care
If the decedent provided assistance or care to surviving members, they are entitled to get paid to replace that care. For instance, if the person was caring for children and now the family needs to pay for childcare, that would be compensable.
Legal Expenses
If there are any legal fees or court costs related to the wrongful death claim, the family is entitled to those as well.
Lost Income
Loss of income is one of the most essential compensation items in a wrongful death claim. That number includes the potential future earnings, promotions, and bonuses. When determining the lost incoming, you and your attorney will need to factor in the following conditions:
Occupation
What is the specific job salary, and what is the future earning potential?
Lifespan
The expected life expectancy of the deceased would refer to how long they could have reasonably stayed on the job before retirement. This relates directly to the person’s age at the time of their death.
Future Earnings
Would the decedent have been entitled to future raises, promotions, bonuses, and retirement savings matching?
Making the Right Demand
When calculating the number for compensation in a wrongful death claim, there are no caps unless the claim is associated with medical malpractice. In those cases, the non-economic damages can’t exceed $500,000.
If the attorneys at DiPiero Simmons McGinley & Bastress, PLLC, decide to support your wrongful death claim, we will collaborate closely with you to come up with a compensation package that is reasonable for the circumstances relating to the death. No amount of money can replace a loved one, but that doesn’t mean the responsible party can’t be held accountable.
