Eight Burning Questions About Wrongful Death

WHEELING, WV, March 26, 2013

Many Americans are unaware of the history and importance of the wrongful death cause of action. In this entry of the West Virginia Personal Injury Law blog, you can find out the answer to eight key questions regarding wrongful death in the event that you are so unfortunate as to lose a loved one as a result of one.

1. What is a wrongful death?

Historically, under American and English common law, there was no claim for wrongful death. If a person was killed by the wrongful act of another, their claims died with them. This created the perverse result that it was better, legally speaking, to kill someone through negligence than to simply hurt them. Over time, the various states of the Union passed "wrongful death acts," providing that a person who loses a loved one or a person upon whom they are financially dependent as a result of negligence or intentional misconduct or recklessness could sue the wrongdoer and recover wrongful death damages.

2. What damages are available in wrongful death?

The damages that are available in wrongful death vary from state to state but most every state allows, at a minimum, recovery for the loss of wages and income that the wrongfully killed person (usually called the "decedent") would have earned during their lifetime. West Virginia and Ohio also allow damages for the loss of what is called the "society, solace and kindly offices" of the decedent, as well as recovery for the grief and sorrow of those left behind feel as a result of the wrongfully caused death. Pennsylvania law is more restrictive and makes it difficult to recover damages for grief, although it is still possible to recover those damages with skilled representation.

In West Virginia, punitive damages are allowed if the death was caused through recklessness, intentional wrongdoing or malice, while Ohio is again more restrictive of those types of damages in a wrongful death case.

3. Who can maintain an action for wrongful death?

Again, the answer varies by state. In West Virginia, the wrongful death beneficiaries are typically considered to be the surviving spouse, if any, the children, if any, or the parents of the decedent. Ohio law is somewhat broader allowing brothers and sisters, aunts and uncles, nieces and nephews to recover damages more readily. Most states also have a "catch-all" clause in the law that allows a person who is financially dependent on the deceased to potentially become a beneficiary - even if they are not blood kin of the deceased.

4. Where are wrongful death cases filed?

A wrongful death case is typically filed in the court of general jurisdiction in the state where the wrongful death occurred or where the wrongdoer resides or does business. In West Virginia that means circuit court, whereas in Ohio and Pennsylvania, that would mean a court of common pleas. Wrongful death suits can also be filed in federal court if certain requirements are met.

5. Are wrongful death damages capped?

In Ohio, a wrongful death cause of action is a constitutionally protected right. Accordingly, wrongful death damages are uncapped in Ohio and wrongful death damages are unaffected by the various caps that the Ohio legislature has passed for other types of damages. In West Virginia wrongful death damages are generally uncapped, although they may be restricted in certain types of cases such as wrongful death arising strictly from negligent medical care.

6. Should I get an autopsy?

Any time a death is unexpected or suspicious, it is not inappropriate to request and obtain an autopsy. County coroners and medical examiners should provide autopsies in any case for unexpected or suspicious deaths, but sometimes these government officials do not want to perform an autopsy and will use any excuse not to do one. In that case, it is important that the family, if it is suspicious of the circumstances of the death, to either insist on an autopsy by the medical examiner or the coroner or arrange for one privately. If you have been a victim of a wrongful death or are suspicious that a wrongful death has occurred and can't seem to get an autopsy done, it is important to contact an attorney as early as possible because there is only one chance to obtain the critical evidence that an autopsy can provide.

7. What is the statute of limitations for wrongful death?

The generic or general statute of limitations across Ohio, West Virginia and Pennsylvania for a wrongful death case is two years. However, this by no means means that anyone should wait that long before beginning an investigation or hiring an attorney to look into a wrongful death. Many steps are necessary before a case can be appropriately filed, and that takes time, so anyone that is a victim of a suspicious death or a potential wrongful death should act quickly. Moreover, just because it has been two years does not mean in every case that the victims are out of luck. Statute of limitations law can be complicated and there are various factors and circumstances which can "toll" the statute of limitations allowing extra time. Once again, in all circumstances, timely legal advice at the earliest possible time after the death occurs is the key to protecting your rights.

8. Who decides a wrongful death case?

In the overwhelming majority of wrongful death cases, the issue of liability and damages are determined by a jury unless the parties can reach an agreed settlement before the time of trial. Certain cases such as those against the government may have to be tried to a judge or a panel of judges.

Chris Regan is a partner at Bordas and Bordas. To learn more about West Virginia personal attorney Chris Regan and practice, visit www.bordaslaw.com.