When a loved one dies due to someone else’s negligence, the pain and anger can be particularly acute. You may want to move through the process of mourning as privately as possible. That can include wanting to keep any wrongful death settlement private. You can retain that privacy depending on how the settlement is awarded.
Jury Trial vs. Out-of-Court Settlements
Awards made during out-of-court negotiations are kept private. Only you, your lawyer, and the wrongdoer’s insurer will have knowledge of the settlement amount. If the civil lawsuit goes to trial, the records will be open to the public, including how much is awarded to the plaintiff in the verdict. All witness testimony, descriptions of how the victim suffered, and other evidence are part of the record open to the public. A case goes to trial only when a settlement cannot be agreed upon by the parties. Often cases are settled, and a trial can be avoided.
Our experienced attorneys at Katz, Kantor, Stonestreet & Buckner can help whether the settlement stays out of court or goes to trial.
Defining Wrongful Death
Wrongful death is a civil lawsuit seeking damages when a person’s death is the fault of another’s due to some negligent or wrongful act.
Wrongful death lawsuits can stem from such incidents as:
- Negligence-based incidents like truck accidents and car accidents
- Medical malpractice
- Intentional acts
In a wrongful death case, compensation can be recovered for:
- Burial expenses
- Loss of companionship
- Lost and damaged property
- Lost wages and benefits
- Medical costs
- Mental anguish
Some states allow surviving family members to file a wrongful death lawsuit. West Virginia law requires the plaintiff in a suit to be the personal representative, or executor, of the deceased’s estate. If a person dies without an official executor, certain family members can apply to be named the estate’s representative.
Those eligible to file a wrongful death lawsuit are:
- Deceased's surviving spouse
- Deceased's children, stepchildren, and adopted children
- Deceased's parents and siblings
- Any family members who were financially dependent on the deceased at the time of their death
If none of those people survive, the damages will be distributed according to the deceased's will or West Virginia's inheritance laws.
A wrongful death claim can be filed even if the wrongdoer also is the subject of a criminal case related to the death or even if they have been found not guilty in a criminal trial. The bar to find in favor of the plaintiff is higher in criminal court where guilt beyond a reasonable doubt must be established. In a civil lawsuit, a preponderance of the evidence must demonstrate the defendant’s guilt.
Statute of Limitations
The deceased's personal representative has two years from the date of the death to file a wrongful death claim.
Damages in Wrongful Death Cases
Under West Virginia law, damages can be awarded for a range of losses.
Potential awards can include both economic and non-economic damages, such as:
- Funeral and burial expenses
- Lost income, including the reasonable value of wages and benefits the deceased would have been expected to earn if they had lived
- Medical bills related to the deceased person's last illness or injury
- Sorrow, mental anguish, and solace
- Loss of society, companionship, comfort, guidance, and advice
- Loss of the deceased's services, protection, care, and assistance
The award cap on non-economic damages is $500,000.
In cases when a jury determines the damages to be paid, they may also direct how the award should be distributed among the beneficiaries. In settlements made outside of a trial, a judge will make the decision on how the award will be distributed among the deceased’s beneficiaries. A hearing and all beneficiaries will be notified, and they can speak before the judge.
Comparative Fault in West Virginia
West Virginia uses a modified comparative fault rule. If the deceased is determined to be partly at fault, any award will be reduced accordingly. If the deceased is more than 50% at fault, no damages can be awarded.
Experience on Your Side
If you're considering a wrongful death lawsuit in West Virginia, we are here to help. Our seasoned attorneys can examine how the state’s wrongful death laws apply to your case. We have been serving the Mountain State since 1931 with proven results.
We offer free consultations to give you the insights and counsel you need. Contact us online or by phone at (304) 713-2014.