If an individual dies in Virginia in a wrongful act, neglect, or default of another party, the deceased individual’s personal representative may seek compensation for the loss in a wrongful death action. However, Virginia law provides a limited time in which to file a wrongful death lawsuit. Missing that deadline can result in the loss of the right to pursue compensation. Let’s take a closer look at Virginia’s statute of limitation for wrongful death actions—what it is, why it exists, and how a lawyer can help grieving families comply with it.
Overview of Wrongful Death LawsuitsIn Virginia, a wrongful death takes place if it results from the “wrongful act, neglect, or default of any person or corporation, or of any ship or vessel.” A wrongful death lawsuit is a legal claim against the at-fault party for causing that death, seeking damages arising from the death. The damages recoverable in a wrongful death lawsuit in Virginia can include:
- Sorrow, mental anguish, and solace;
- Compensation for reasonably expected loss of (1) income of the deceased individual and (2) services, protection, care, and assistance provided by the deceased individual;
- Expenses for the care, treatment, and hospitalization of the deceased individual for the injury that ultimately resulted in death;
- Reasonable funeral expenses; and
- Punitive damages of up to $350,000 if the death resulted from willful or wanton conduct or such recklessness as evinces a conscious disregard for the safety of others.
Virginia’s Two-Year Wrongful Death Statute of LimitationA statute of limitation is a law setting a maximum amount of time in which a person can assert a legal claim in court. The failure to begin legal action within the deadline results in permanently losing the right to pursue compensation, in most cases. Statutes of limitation exist to ensure that parties seek resolution of their claims while evidence is still available and witness memories are still fresh. The length of time set by the statute of limitation can vary widely based on the subject matter of the lawsuit. Statutes of limitation for identical cases can also vary widely from state to state. In Virginia, the statute of limitation for wrongful death is two years from the date of the death. In other words, the personal representative of the deceased individual must file a lawsuit seeking wrongful death damages before the second anniversary of the death or permanently lose the right to seek damages.
Tolling the Statute of Limitation in VirginiaIn a limited set of circumstances, the personal representative may have the ability to file a wrongful death action in Virginia more than two years after the date of death. In such cases, the statute of limitation is said to have tolled, which is legal terminology for when the clock stops on the statute of limitations. These situations include:
- When it takes more than two years to appoint a personal representative for the deceased individual;
- When the defendant obstructs or prevents the filing of the wrongful death lawsuit, such as by filing a bankruptcy petition that stays all actions against him; and
- In certain cases, when it takes more than two years to discover that a wrongful act caused the individual’s death.
How an Experienced Attorney Can Protect Your Rights in Wrongful Death CasesIn the painful aftermath of a tragic death, hiring an attorney may not always rank high on a family’s list of priorities. However, in most Virginia wrongful death cases, that family will have just two years to commence legal action. That may seem like a long time, but a skilled wrongful death attorney may need every minute of it to prepare the strongest possible case. An experienced wrongful death attorney can protect a family’s legal and financial interests by:
- Conducting a thorough investigation into the circumstances of the death to identify the at-fault parties and to assess their ability to pay compensation.
- Evaluating the scope of the loss caused by the wrongful death, including financial expenses and personal impacts.
- Explaining the family's rights and options, and answering their questions, with skill and compassion.
- Negotiating with the at-fault party’s insurance adjuster or defense attorney to obtain a fair settlement, if possible.
- Advocating for the family in Virginia courts to see justice done for their deceased loved one and secure them the compensation they deserve.