Every year, thousands of entirely preventable accidents occur that harm or injure West Virginia residents. Some of these accidents end lives. To obtain justice for a tragic family member’s death that was preventable, you need to hold the at-fault party accountable. No one should get away with negligent actions that result in the premature death of another human being. At DiPiero Simmons McGinley & Bastress, PLLC, our Charleston wrongful death lawyers are passionate about pursuing high settlements for grieving families.
In the legal world, we refer to a wrongful death as any death that could have—and should have—been prevented. Most wrongful deaths occur during accidents that are directly or indirectly caused by negligence, reckless behaviors or actions, or carelessness. The U.S. civil justice system lets family members and loved ones of victims who died wrongfully take legal action against the guilty party. This is an area of law we call wrongful death law.
When you lose a loved one in a car accident, truck accident, or during any type of incident you didn’t expect, the recovery process can be devastating—especially if the accident could have been prevented. When a life is lost due to another’s actions or behaviors that were careless or reckless, obtaining justice is sometimes the best option and can aid the recovery process. We’re here to help you seek that justice. Let’s take a look at how West Virginia defines and handles wrongful death.
What Tragedies Can Result in Wrongful Death?
Wrongful death claims can arise from any type of accidental death. The tragedies that result in unexpected fatalities are often the direct result of another party’s negligence. The examples below are some of the most common situations that end in a wrongful death.
Auto Accidents. Car accidents claim thousands of lives every year. Surviving victims may be faced with long recoveries and life-changing conditions. These wrecks typically result from speeding, distracted driving, reckless driving, auto defects, drunk driving, and inexperience. Truck accidents can also result in wrongful death when truck drivers neglect their vehicle’s maintenance or drive for extended periods of time without stopping. Motorcycles, while liberating, can be deadly because of their exposure and size.
Defective Products. Manufacturers, distributors, and sellers have a responsibility to their customers to ensure their products are safe and reliable. When they neglect that obligation, unsuspecting victims can suffer greatly. Examples of defective products include dangerous vehicles, childcare products and toys, pharmaceuticals, and toxic food products.
Medical Malpractice. When dealing with a medical issue, we have to put our trust in the hands of doctors, nurses, and other healthcare staff. Many of these individuals excel at their jobs; however, when mistakes are made the consequences can be deadly. Mistakes can happen if corners are cut and when communication errors are made. The most common medical errors include birth injuries, misdiagnosis, delayed treatment, surgical errors, and medication errors.
Nursing Home Abuse. It can be a difficult decision to place a loved one in a nursing home; however, sometimes it is necessary. When a facility neglects their residents or intentionally abuses them physically or emotionally, the residents are at risk for sustaining serious injuries. A wrongful death could occur, especially if malnutrition or dehydration were abuse factors.
Workplace Accidents. Employers have a responsibility to keep their employees safe by remaining compliant with the regulations established by the Occupational Safety and Health Administration (OSHA). When they neglect to follow those laws, employees are put at risk. The construction and transportation industries see a high number of wrongful deaths every year.
Who Can File a Wrongful Death Claim in West Virginia?
A wrongful death claim is filed by a representative on behalf of the decedent. The filer is referred to as a “real party in interest.” The representative who files the lawsuit is typically an executor of the decedent’s estate. One of our Charleston wrongful death attorneys can help you determine who in your family can be deemed a representative, and we can aid that person with the claim.
In the state of West Virginia, according to Code section 55-7-6, individuals who may be able to file a wrongful death lawsuit include:
- Immediate family members. Parents, spouses, and children have the right to sue a responsible party for the wrongful death of a family member.
- Life partners or financial dependents. If you lived with the decedent as a partner or were financially dependent on the decedent, you may have the legal right to sue depending on the circumstances with the immediate family.
- Parents of a deceased fetus. This occurs in situations in which the accident caused a pregnant woman to miscarry her baby, when the fetus was otherwise healthy.
- Persons who suffer financially after a death. If a loved one’s death causes you financial strain, you may be able to sue the at-fault party for damages that stemmed from the accident.
In West Virginia, a criminal case can be filed at the same time as a wrongful death claim because the first is filed by the state and the second is brought by the decedent’s estate. While a criminal case may be warranted, it’s the wrongful death claim that can assist survivors with monetary compensation and directly cover the losses.
How Does Comparative Fault Affect a Wrongful Death Claim?
To resolve cases in which an injured person was partly at fault for their accident, West Virginia utilizes the comparative fault rule. This rule also applies to wrongful death cases in the event the decedent may have been partially responsible for the circumstances that led to their death. If this is the case, the law states that the deceased’s estate cannot recover damages with a wrongful death claim if the victim was 50 percent or more at fault for what happened.
Let’s break down what this means with an example. If a person is crossing a street, gets struck by a vehicle, and passes away from the related injuries, the surviving family has a right to file a wrongful death claim. If it’s found the driver of the vehicle ran a red light, but the pedestrian was looking at a cell phone while crossing the street, a judge or jury can assign fault percentages.
Let’s say they decide the total damages is equal to $100,000, but the deceased is deemed liable for 30 percent of the accident. This means that the family and estate can recover $70,000 in damages.
What Compensation Is Available to Recover from a Wrongful Death?
Recovering from the loss of a loved one can undoubtedly take an emotional, physical, and financial toll. While we understand the wrongful death lawsuit cannot bring your loved one back, the compensation can help with the piling expenses. Families may be eligible for compensation to cover the following categories after unexpectedly losing a loved one:
- Medical Bills. Depending on the circumstances surrounding your loved one’s death, your family may be dealing with incurred medical expenses. If your loved one was treated for an extended period of time before their passing, it’s likely the cost of care was extremely high and burdensome. Compensation will help to cover these expenses.
- Funeral Expenses. Funeral and burial expenses often cost thousands of dollars. Depending on the wishes of the deceased or the family, the costs can seem extreme. Compensation can be won to manage these bills.
- Lost Earnings. In the event the decedent was a financial provider for your family, you may be struggling even more. The right attorney can ensure the family is awarded the amount of money the loved one would have been expected to earn in the future had their life not been cut short. This can include benefits and retirement.
- Pain and Suffering. Families may be eligible for compensation for the grief, pain, and suffering they’ve experienced and are still experiencing as a result of their loss. This is especially applicable in the event of the loss of a spouse or parent.
- Punitive Damages. In some instances, especially when a loved one’s death resulted from a drunk driver or a serious workplace regulation violation, families may be eligible for compensation that punishes the at-fault party in an attempt to prevent the same or similar actions from happening in the future.
What Factors Influence the Value of the Lawsuit?
There are a number of factors that could potentially influence the value of the lawsuit. Our Charleston lawyers are prepared to handle the complexities associated with these cases, so your family receives full and fair compensation. The following could potentially influence the determined value of the claim:
- The facts of the accident that lead up to the death and whether the cause was a mistake or related to direct negligence
- If the death is not disputed, the claim could be worth more
- The amount of pain and suffering the deceased experienced preceding death
- The number of potential beneficiaries
- The age of the decedent
- The identity of the party who caused the death – a mistaken individual may be viewed more sympathetically than a negligent workplace or employer
- The level of insurance coverage – an underinsured or uninsured party may render damages unrecoverable
- The insurance company – who will likely try to minimize the claim and avoid paying full compensation
- The personal character or reputation of the decedent
- The experience of your lawyer
Reach Out to Our Charleston Wrongful Death Lawyers
After losing a loved one, you may have trouble making ends meet or recovering after having to pay for your deceased family member’s final costs. These are the times when filing a West Virginia wrongful death lawsuit can do the most good. It’s important to remember there is a statute of limitations associated with wrongful death claims. In West Virginia, a claim may be filed up to two years after the untimely death. Our lawyers will work to ensure you do not miss this deadline.
At DiPiero Simmons McGinley & Bastress, PLLC, you won’t just work with one lawyer. We handle all our clients’ cases as a team. We believe that each of our West Virginia wrongful death lawyers has distinctive experiences that frame his or her skills and enhance our team’s collective ability. We can use our combined legal knowledge to best secure a high settlement or verdict in your case.
Wrongful death cases are often incredibly complex; however, we will fight for you and your deceased loved one, to ensure the negligent party is held accountable for their actions. A wrongful death claim will not erase the tragedy that occurred, but it can offer peace of mind so your family can focus on healing.
We understand that you’re grieving from the loss of your loved one. Allow us to take care of your legal matters, and we’ll give you the time and compensation you need to recover. Call our Charleston firm today for a free case evaluation or to learn more about our services.