Who Can File a Wrongful Death Suit?

Personal Injury Attorneys Blog

If you are here, you may have lost a loved one and may face a difficult time.

You may wonder whether you can file a wrongful death suit and get financial support to cope with this tragedy.

If you are an immediate family member, you may file a wrongful death suit, but different states have different laws relating to wrongful death suits.

This blog will explain who can file a wrongful death suit. A wrongful death lawyer near you can determine your eligibility to file a claim under the laws of your state.

Who Can File a Wrongful Death Suit?

File a Wrongful Death SuitGenerally, the laws allow certain people to file a wrongful death suit. Other states don’t allow individuals to file wrongful death claims. Only the personal representative of the deceased’s estate can file the claim. For example, Virginia only allows the personal representative to file a claim (link needs to be changed to 64.2-454).

Usually, the personal representative is a family member.

What if the Deceased Person Had a Will?

Having a will also determines who can file a wrongful death claim. If the descendant leaves behind a will naming an executor, the executor administers the estate and can file a wrongful death claim.

Is Anyone Immune From a Wrongful Death Lawsuit?

Although you can sue almost all individuals and entities for wrongful death claims, some have sovereign immunity. Thus, they may be immune from regular negligence liability. Government agencies or government employees are often examples.

Sometimes these entities and individuals may not have immunity when they do not act within the scope of their official duties or if they acted with gross negligence. In some cases, the government waives its immunity.

Depending on the facts, you may not be able sue an employer for wrongful death if your loved one dies at work. You can instead raise a worker’s compensation claim.

As every case is different and requires a unique approach, you will need a  wrongful death lawyer to decide whether the defendant enjoys immunity.

Wrongful Death Versus Survival Action

Do not confuse wrongful death with survival action.

Survival Action

A survival action seeks compensation for the losses suffered by the decedent, such as the cost of care or treatment received between the time of the accident and the time of death. Generally, if the cause of death was not due to the defendant’s negligent act, a personal representative may file a survival action on behalf of the descendant’s estate.

Wrongful Death Suit

The decedent’s family seeks compensation for themselves as they have endured losses and pain due to the death of their loved one. While the laws of every state differ, under Article 5 of the Code of Virginia, the beneficiaries may recover damages for the loss of society, comfort, companionship of the descendant, and other damages.

Damages Recoverable in a Wrongful Death Suit

Because each case is unique, the facts of your case determine the value of your claim.

In wrongful death cases, to determine damages, the court usually considers:

  • Medical expenses for the treatment of deceased
  • Loss of the lifetime income and support of the deceased
  • Funeral and burial expenses of the deceased
  • Legal expenses
  • Loss of companionship and society from the deceased
  • Pre-death pain and suffering

The court may also punish wrongdoers by awarding punitive damages for a wrongful death that results from intentional or reckless behavior in some states.

Wrongful Death Suit Average Payout

What you recover will depend on your case.

But certain factors may increase or decrease your compensation:

  • Age and health of the deceased
  • Age of survivors

A wrongful death lawyer can estimate the value of your case.

Chances of Winning a Wrongful Death Suit

These elements play a crucial role in your chances of winning:

  • Duty of care. As a plaintiff, you must prove that the defendant owed a duty of care to the deceased.
  • Breach the duty. In the second step, you must prove that the defendant breached the duty of care by acting negligently or intentionally.
  • Cause of death. In the third step, you must prove that the actions caused of your loved one’s death.
  • The loved one’s survivors suffered damage. In the last step, you must prove that this tragedy caused you actual damage.

Typically, you need to establish all these elements to win your case. It is tough to prove all the above points.

Experienced wrongful death lawyers know how to prove the elements of negligence, evaluate your claim, file your suit, and recover all of your damages.

How to File a Wrongful Death Lawsuit

You need to file your case in the court with jurisdiction over the place where the fatality took place.

A wrongful death lawyer can draft all necessary legal documents and file your case in an appropriate court.

You may settle your claim with the insurance agencies of the defendant. They always try to settle your claim for less than the true cost of your injuries.

A wrongful death lawyer can represent you in settlement negotiations and get the compensation you deserve.

How Long Does It Take To Settle a Wrongful Death Suit?

The duration of the settlement depends on your case. The reason is the same: Every matter is distinct and requires a different approach.

Most parties settle wrongful death suits in settlement negotiations. A lengthy and crucial discovery phase often comes before negotiations.

Discovery includes acquiring important information, obtaining evidence, and investigations by the parties to build their cases.

Statute of Limitations for Wrongful Death Suits

The statute of limitations sets the deadline for filing a wrongful death suit. You must file your case within the prescribed time.

The deadline varies state by state. Call a personal injury lawyer to determine the statute of limitations where you live.

How an Experienced Wrongful Death Attorney Can Help You?

Walter H. Emroch - Virginia Personal Injury Attorney & Partner
Wrongful Death Lawyer, Walter H. Emroch

You are already passing through a rough time because you lost a loved one.

In your legal battle, you need someone who can serve as a valuable legal ally. A wrongful death attorney can answer all your questions, deal with insurance agencies, deal with the incredibly complex legalities, and get you the compensation you deserve.

You deserve compensation. Indeed, monetary compensation cannot reduce your grief. But it can provide financial support to cope with this difficult time.