Wrongful Death

What is a Wrongful Death case in Virginia, and why is it different?

If someone you love tragically passed away, and you seek to pursue their injury claim in a Virginia Court, you must be aware of our complex laws.  You can’t simply file a lawsuit on their behalf.  Instead, you must understand the nature of your claim, be properly appointed, and work with your attorney to ensure everything is in order before proceeding.  

This article is intended to provide a discussion of Virginia “Wrongful Death” and “Survival Action” claims.  To be clear, this article is for informational purposes only, and is not intended to be legal advice.  If you have a potential Wrongful Death (or Survival Action) claim, you must contact a qualified attorney for guidance. 

This article also assumes that your loved one passed away with no Last Will & Testament and no other person has already been appointed to pursue the potential Wrongful Death case.  If you’re not sure, you’ll need to discuss this with your attorney.

Once you’ve had a chance to review this article, give Abrenio Law a call for your FREE Consultation at Ph. 703-570-4180.

What kind of claim are you actually making?

If you’re seeking legal redress for a deceased loved one, you need to ask yourself whether that person died due to the negligence you are claiming.  If so, this is likely a Wrongful Death case.

Virginia Wrongful Death Cases.

In Virginia, a Wrongful Death claim is one brought when a person died as a result of another’s wrongful, negligent actions.   Governed by Virginia Code Section 8.01-50, generally, claims are brought by and in the name of the Personal Representative of the Decedent.

As provided in Virginia Code Section 8.01-52, the following damages can be made in a Wrongful Death claim:

  • Sorrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent;
  • Compensation for reasonably expected loss of (i) income of the decedent and (ii) services, protection, care and assistance provided by the decedent;
  • Expenses for the care, treatment and hospitalization of the decedent incident to the injury resulting in death;
  • Reasonable funeral expenses; and
  • Punitive damages may be recovered for willful or wanton conduct, or such recklessness as evinces a conscious disregard for the safety of others.

Who is awarded damages in a Wrongful Death claim?

Virginia Code Section 8.01-53 provides to whom Wrongful Death funds are distributed in order of priority:

  • Surviving spouse, children, grandchildren
  • Surviving parents and siblings
  • Household relatives who are dependent on the deceased
  • Surviving family member entitled to inheritance of Virginia’s probate laws for someone without a will

What if my loved one died for an unrelated cause, but they had a personal injury claim before they died? (A discussion of Survival Actions).

As explained by Virginia Code Section 8.01-25, a Survival Action is a personal injury claim for someone who has passed away, but the negligence for the claim did not cause the person to die.  For example, if your father had a car accident claim, but later died from unrelated causes.  His personal injury claim would not terminate because of his death.  Instead, the claim “Survives.”

In Survival Action claims, the damages are the same that would have been made in a typical accident case.  To understand damages in Virginia accident cases, click here.  However, they would be awarded to the decedent’s Estate.

What if I’m not sure if I have a Wrongful Death or Survival Action claim?

The reality is, if you’re looking to bring a claim on behalf of someone that passed away, the case is inherently complicated enough to need an attorney to help. So, this is a discussion you’ll need to have with your attorney.

Regularly, people will contact Abrenio Law about a loved one’s death, but they aren’t sure if their death was due to negligence.  Going back to the previous example, imagine if your father was involved in a serious car accident.  Imagine also that he had significant pre-existing medical conditions.  You believe the accident exacerbated his injuries causing him to pass away – but you aren’t sure.     

Under Virginia Law, the Court cannot award damages for both a Wrongful Death and Survival action.  (See Virginia Code Sections 8.01-25, 8.01-50, and 8.01-56.)   In reality, from a medical standpoint, it may also be difficult for a doctor to opine whether a death resulted from the accident or an unrelated cause.

If you’re facing a similar situation, it may require your attorney to sue for Wrongful Death and Survival Action in the alternative, and later let the facts of the case determine the right claim.  Indeed, that’s what happened in Centra Health, Inc. v. Mullins 277 Va 59 (2009)(“election is required only at a time when the record sufficiently establishes that the personal injuries and death arose from the same cause” regardless of whether that time came prior to trial.”)

Nevertheless, this scenario is a complicated one.  And you would need to talk with your attorney and let him or her decided the appropriate path.  

Are you the right person to bring the Wrongful Death (or Survival Action) case?” (How to properly qualify to a case.)

To sue for either Wrongful Death or a Survival Action, you must be properly appointed.  Again, this is a complicated area of law, and this article is intended for informational purposes only.  You’ll need to discuss this with your attorney.

Under Virginia Code Section 64.2-454, where an Executor of an Estate has not been appointed (usually where the decedent lacked a will), the Code Provides:

An administrator may be appointed in any case in which it is represented that either a civil action for personal injury or death by wrongful act, or both, arising within the Commonwealth is contemplated against or on behalf of the estate or the beneficiaries of the estate of a resident or nonresident of the Commonwealth who has died within or outside the Commonwealth if at least 60 days have elapsed since the decedent’s death and an executor or administrator of the estate has not been appointed under § 64.2-500or 64.2-502, solely for the purpose of prosecution or defense of any such actions, by the clerk of the circuit court in the county or city in which jurisdiction and venue would have been properly laid for such actions if the person for whom the appointment is sought had survived. An administrator appointed pursuant to this section may prosecute actions for both personal injury and death by wrongful act.

A few points need to be made:

  • You can be appointed so long as an executor hasn’t already been appointed.
  • You can be appointed for purposes of both Survival Action and Wrongful Death claim
  • The appropriate venue is where it would be if your loved one was still alive (typically where the negligent action happened).

When being appointed, one issue to be aware of is the “Antisdel Problem.”  In Antisdel v. Ashby, 279 Va. 42 (2010), a case was dismissed where the Court appointed an Administrator of an Estate for a Wrongful Death claim (under 8.01-50) but not for a Survival Action (under 8.01-25), and the Administrator later needed to convert the case from a Wrongful Death case to a Survival Action.  In dismissing the case, the Court found that the original appointment didn’t give the Administrator the right to bring the Survival Action, therefore, it had no choice but to terminate the claim. 

To avoid this issue, many jurisdictions are ordering that all “administrators be appointed for purposes of wrongful death or personal injury pursuant to [Section 64.2-454].” (Note – Antisdel was decided under a former version of Section 62.454, when it was codified under Va Code Section 64.1-75.1)

What if someone else has already been appointed?

Once an administrator has already been appointed, no one else can be appointed unless that initial appointment has been revoked. Bolling v. D’Amato, 259 Va. 299 (2000)(case was dismissed when decedent’s widow was appointed as Administrator, but then his brother was appointed as co-administrator for purposes of brining suit).

What if someone dies with a Will?

If so, it’s likely that the Will named someone as an Administrator already.  You must check with your love one’s attorney to get further guidance.     

Making sure that that you are named correctly in the lawsuit.

In Virginia, Estates themselves cannot file lawsuits. In the Estate of James v. Peyton, 277 Va. 433 (2009), the Court dismissed suit when the Plaintiff named the party “Estate of Robert Judson James, Administrator, Edwin F. Gentry, Esq,” and the Court found that the Estate itself was the Plaintiff, not the Administrator. 

Given that, Virginia Code Section 8.01-6.3 was enacted to clarify this ruling:

Make sure that you and your attorney review this statute when drafting the Complaint to be filed.

To get appointed, where do I go and what do I need to bring?

Now that you’ve had a chance to learn about how Virginia Wrongful Death (and Survival Actions) work, you understand that you must be appointed by the appropriate court before filing suit. 

Again, these suggestions assume that your loved one died with no Final Will & Testament and no other administrator has been appointed. These suggestions also assume that you’re seeking appointment solely to pursue a Wrongful Death or Survival Action claim.  If you’re seeking further responsibilities, you need to discuss this with your Estates & Trust Attorney.  Before you do anything, you need to speak with your attorney.

Call the appropriate Probate Office.

Under Virginia Code Section 64.1-75.1, you’ll likely go to the jurisdiction where the negligence happened to seek appointment. Every jurisdiction will have a Probate Office.   

Before going, you will need to call the Probate Office to schedule a meeting. Typically, the employees are nice, respectful, and easy to talk to.  You can tell them that you’re seeking to be appointed for the claim.  They will likely direct you to documents you will need to fill out and bring with you. 

Here’s a listing of the Local Probate Offices:

Make sure you bring the documents. 

When going, you’ll need to bring documents for your appointment.  While every jurisdiction is different, below is a list of typical documents for which most offices will ask.  When scheduling your appointment, confirm which documents that they will need.   

  • Last Will & Testimony (if applicable)
  • Certified Copy of Death Certificate
  • Jurisdictional Specific Informational Form
  • Approximate value of the love one’s estate
  • Names, address, and address of the heirs-at-law (Under Virginia Code Section 64.2-200).
  • Valid Photo ID
  • Payment method (ask them what they take)
  • If you’re not a Virginia resident, make sure the Probate Office is aware because additional steps must be taken for your appointment.
  • If the decedent died in a nursing home, provide the address of the decedent’s residence prior to entering the nursing home on the Probate information form

Make sure that you’re properly appointed to pursue the Wrongful Death (or Survival Action) Claim.

As Antisdel v. Ashby, 279 Va. 42 (2010) made clear, for you to pursue the claim, you need to ensure that the Court has properly appointed you to do so. Again, this will be something that you and your attorney will have to discuss specifically regarding your claim. However, hopefully, this article has helped you become more informed about what you need to discuss with the Court to ensure you have proper authority to bring such a claim.

Once you’ve been appointed, make sure that you provide your attorney with your appointment paperwork. And confirm with them that everything is in order to proceed. Don’t ever just assume “the court must have done it right.” Because mistakes can be made.

Still have questions about your potential Wrongful Death (or Survival Action) case?

If you’ve got a potential Wrongful Death claim, you likely have a lot more questions. Make sure to review other articles and videos we’ve created. Then give Abrenio Law a call at Ph. 703-570-4180 for your FREE Consultation. To learn more about James Abrenio, click here.