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If there are multiple beneficiaries in a wrongful death case, will there be multiple lawsuits or just one on behalf of all beneficiaries?
While the law limits a single personal representative to filing a wrongful death lawsuit, there can be multiple beneficiaries who recover compensation from the lawsuit. The personal representative files the lawsuit on behalf of all the beneficiaries.
A wrongful death lawsuit is a civil claim filed against a person who causes the death of another person because of negligence or intentional act. The deceased’s personal representative will file a wrongful death claim, not on behalf of the deceased, but on behalf of the beneficiaries. The personal representative may also file a survival action on behalf of the deceased’s estate.
According to West Virginia Code Section 55-7-6(b), below are individuals who may recover damages in a wrongful death lawsuit
- Surviving spouse
- Adopted children
- Brothers and sisters
- Any persons who were financially dependent upon the victim at the time of death
If you’re unsure whether a certain beneficiary is entitled to damages in your claim, consult an attorney to review the specifics of the case.
What types of damages are available in a wrongful death lawsuit?
Below are some of the damages recoverable in a wrongful death lawsuit, per West Virginia Code Section 55-7-6(c).
- Mental Anguish
- Reasonably expected loss of income, services, protection, comfort, guidance, kindly offices, and advice
- Expenses for care, treatment, and hospitalization
- Funeral expenses
The judge or jury may decide in which proportions to distribute the damages to the beneficiaries, which is important in the event there are multiple beneficiaries in the claim.
Also keep in mind that the deceased’s personal representative must file a wrongful death suit for damages within two years of the time of death.
Do I need an attorney?
You do not have to hire an attorney for your wrongful death claim, but an attorney is a valuable asset. An attorney can help you understand the ins and outs of a wrongful death lawsuit, who can file a lawsuit, and who may recover damages, such as in the event of multiple beneficiaries. Remember, you only have two years to file a claim, so it’s important that you take action as soon as possible.
To begin, call the attorneys at the Miley Legal Group for answers to your questions today at 304-931-4088. You can also fill out our contact form to set up your free consultation.
Do I need a wrongful death attorney in Clarksburg?
If your loved one’s death falls under wrongful death, you may need a wrongful death attorney to help you file your claim and secure damages to which you're entitled. Of course, you don’t have to hire a lawyer, but doing so can help you ensure you take all necessary legal steps and can help you build your wrongful death case against a negligent party responsible for your loved one's death.
Wrongful Death Claims in West Virginia
West Virginia Code §55-7-6 provides the rules for filing wrongful death claims. The law states that the only person who can file a claim is the “personal representative of such deceased person who has been duly appointed in this state, or in any other state, territory or district of the United State.”
The representative files the claim, but any monies collected will be distributed to the qualifying beneficiaries. Below are some of the dependents that may be named as beneficiaries in a wrongful death claim.
- Natural children
- Adopted children
- Other people that were financially dependent upon the decedent
Many families who’ve lost their loved one in a wrongful death find it helpful to hire a wrongful death attorney. A lawyer can explain the claims process, help compile evidence to support your claim, and answer any questions you have along the way.
It’s important to note that West Virginia law has a statute of limitations for when a wrongful death claim can be filed. The claim must be brought within two years of the death or you’ll lose your rights to compensation. If you are considering pursuing a wrongful death lawsuit, it’s important to not delay in taking action.
Get a Free Consult with a Wrongful Death Lawyer at Miley Legal
If you recently lost your loved one to an untimely death, our attorneys at the Miley Legal Group are here to assist you. Contact us at 304-931-4088 to schedule a free consultation at your convenience.
If the deceased lived in West Virginia, but the beneficiaries lived elsewhere, do they file for wrongful death out of state?
If the fatal accident occurred in West Virginia, then the beneficiaries will file a wrongful death lawsuit in West Virginia, even if they are not a resident of that state. There are state-specific guidelines and protocols wrongful death beneficiaries will have to follow, so it’s important for them to speak with an attorney to discuss the particulars of their case.
West Virginia Rules for Out-of-State Beneficiaries
The location of the accident or the defendant's residence determines where to file a wrongful death claim, not the beneficiaries’ residence. West Virginia law provides that personal representatives for out-of-state beneficiaries can bring a wrongful death suit to a West Virginia circuit court.
The personal representative of the beneficiaries – if appointed in another state – will have to pay a $100 surety bond to the courts as a promise that they will follow all the laws and proceedings required by West Virginia.
Specifically, West Virginia Code §55-7-6 provides: “If the personal representative was duly appointed in another state…such personal representative shall, at the time of filing of the complaint, post bond with a corporate surety thereon authorized to do business in this state, in the sum of one hundred dollars, conditioned that such personal representative shall pay all costs adjudged against him or her and that he or she shall comply with the provisions of this section.”
The statues also say that the court has the authority to increase or decrease the surety bond if there is good cause.
Hire an Attorney if Filing for Wrongful Death Out of State
If you recently lost a loved one in an accident in West Virginia, speak with an attorney in the state about your legal options, even if you live out-of-state. An attorney will be able to determine whether or not your loved one’s death meets the elements of wrongful death claim and take the steps necessary to pursue a settlement.
For a wrongful death attorney in Clarksburg, WV, call the Miley Legal Group. Contact us today for a free, no-obligation legal consultation: (304) 326-1800.
In the case of an out-of-state death, do I still file a claim in West Virginia?
The city of Clarksburg is relatively close to Maryland and Pennsylvania, so residents might travel to other states rather often. If a person was in another state at the time of a wrongful death, you would usually file the claim in the state where the death occurred.
So in the event of an out-of-state death in Pennsylvania, the family must generally file the claim based on Pennsylvania laws because the death occurred in that state.
However, there are exceptions to this rule that may allow a family filing a wrongful death claim to file in a state other than the one where the death occurred.
When might I be able to file a claim in a state other than where it occurred?
You may also file a claim in the state where the defendant resides. For example, if your loved one – a West Virginia resident – was riding in a vehicle driven by a friend – also a West Virginia resident – who caused the fatal accident in Pennsylvania, you may file a claim in West Virginia because the defendant is a resident of the state.
So while in most cases the defendant will reside in the state where the death occurred, that’s not always the case as evidenced by the example described above. This can be rather confusing for families still grieving a loved one’s death, so speak with a lawyer about your legal options to recover damages from the responsible party.
Get Help from an Attorney at Miley Legal Group
Talk with an attorney at the Miley Legal Group in Clarksburg about the venue where you must file a wrongful death claim following a loved one’s out-of-state death. Call us at (304) 931-4088 or contact us online to set up a free consultation with an attorney.
How do I file a wrongful death claim if my loved one was killed while traveling overseas?
Filing a wrongful death claim for a loved one killed overseas will depend on the circumstances and that foreign country's laws for liability. The first step should be talking with an attorney to learn if you have a case.
Determining Viability of a Wrongful Death Claim When Killed Overseas
No matter where the fatal injury occurs, a wrongful death case depends on negligence. It stems from the careless or reckless actions of an individual, business or entity.
Let's say a loved one is on vacation in another country and is injured in a car accident. He/she is rushed to the emergency room. The loved one receives life-saving surgery but when the surgeon closes him or her up, there is a bit of cotton used to soak up blood that is overlooked and left inside your loved one’s body. It’s not immediately detected and so by the time doctors stateside discover the infected cotton, it is too late to save your loved one.
Wrongful Death Laws and How They May Apply to a Case
In West Virginia, a personal representative can pursue legal action in the name of the deceased. This may or may not be a family member. So if your family member was abroad, you would follow the country’s wrongful death laws.
Examples of parties that may recover damages include:
- a surviving spouse;
- children (birth, step and adopted); and
Recovery may also apply to others who depended upon the deceased financially.
Damages could include:
- medical costs;
- funeral expenses;
- mental anguish; and
- expected loss of income.
Keep in mind that these are the laws for the state of West Virginia and apply to wrongful deaths that occur in the state. The laws could vary in other countries. It's best to consult with an attorney who can review that country's laws. The attorney can then determine not only if you have a case, but who can file and who can recover damages.
Consult the Miley Legal Group if you need an attorney to provide legal counsel in the Clarksburg area. Call us at 304-931-4088 or contact us online.
Can family members not named in a will still be beneficiaries in a wrongful death claim?
Yes, West Virginia Code §55-7-6 specifies that surviving family members including a spouse, children, brothers, sisters, and parents and any other person who was dependent on the decedent may be beneficiaries of wrongful death claims. A judge or jury may specify in which proportions to distribute the damages from a wrongful death claim to these parties.
If there aren't any such survivors, then damages are distributed in accordance with the will. If there are problems with the will, then it may become contested.
Reasons a Will Might Be Contested
Even with the best intentions in mind, when someone drafts a will it could still end up being challenged by family. Although there are many reasons this can happen, some are more common.
Wills are contested most often for these three reasons:
- State laws surrounding signing of will weren’t followed. In West Virginia there must be two witnesses. The individual drafting the will (testator) must sign it in front of those witnesses, and they must also sign the will.
- Fraud or forgery. When the signature on a will is forged or it was signed fraudulently, family may fight it. It could be that the testator believed that what he/she was signing was another document other than the will.
- Undue influence. Another issue that can arise is when someone is physically and/or mentally incapable of making sound decisions regarding a legal issue, such as a will. Someone else might take advantage of that situation and influence the individual to sign the will.
These are just some examples of when a will might be contested. To better understand your rights and those of other family members in a wrongful death claim, seek legal advice from a local attorney in Clarksburg. Call the Miley Legal Group at 304-931-4088 to schedule your free consultation.
Does a will impact the amount of compensation collectible in a wrongful death claim?
A will doesn’t impact the amount of compensation that a Clarksburg family may collect in a wrongful death claim. However, it could decide who is named as the executor of the deceased’s estate and how any assets should be distributed to wrongful death beneficiaries.
Filing a Wrongful Death Claim in West Virginia
A personal representative appointed by the state can file a wrongful death claim. If an executor has already been named in a will, those powers are not granted until an oath is taken before the county court. The personal representative may or may not be a relative. The proceeds recoverable in a wrongful death claim are distributed to the heirs listed in the will.
If there isn’t a will, the court may decide who will be the wrongful death beneficiaries such as:
- a spouse;
- parents; and
- others who may have been financially dependent on the deceased.
How Compensation Is Determined in a Wrongful Death Claim
The amount of compensation from a wrongful death case isn’t dependent on the will. The court decides what is fair and just. However, the will might specify how assets should be divided. If not, the court will also determine in what proportions compensation from the wrongful death settlement or award should be disbursed.
Compensation for a wrongful death is based on the damages the decedent's survivors suffered. This is decided on a case-by-case basis because there are numerous factors that could impact this. For instance, if there are minor children left without a parent who would have provided training, nurturing and guidance the claim could account for this. Or if the deceased was the sole breadwinner of the family, the claim may also account for lost earnings.
Examples of damages that may be collectible include:
- mental anguish;
- costs for medical treatment;
- reasonable funeral expenses; and
- lost income and services.
Families facing a wrongful death suit can consult with an attorney to learn what rights they have after losing a loved one, including the impact a will may have on the case. The MIley Legal Group helps families in Clarksburg protect and pursue their rights to compensation and benefits after a wrongful death, so call us today at 304-931-4088 or contact us online.
My deceased family member was a primary income earner. Can our family sue for loss of income?
When a family member was the primary income earner and died as a result of someone else’s negligence, damages for loss of income may be recoverable for the benefit of beneficiaries. To learn about rights to sue for income loss and other forms of compensation in a wrongful death claim, read on and contact an attorney.
Loss of Income in a Wrongful Death Case
Families can be left reeling after the sudden loss of a loved one not only emotionally, but financially as well. Already trying to cope with grief, make funeral arrangements, and facing an uncertain future, there can be a lot of concerns about the mounting medical bills and the knowledge that a primary income source is no longer available.
Wrongful death claims can address a variety of direct expenses, such as medical bills and funeral costs. But there may also be compensation for indirect expenses that arise, such as the loss of the deceased’s earnings.
According to West Virginia law, a claimant for wrongful death can seek compensation for reasonably expected loss of income. Determining what’s reasonable can pose some challenges because it may not only involve the deceased’s salary but other benefits such as retirement and pension plans.
There can be many factors that determine the value of lost income:
- life expectancy;
- retirement age; and
- wage rates.
It may also take into consideration the age of dependents, such as minor children. There isn’t a set formula to determine the worth of indirect damages such as these. The same is true for other forms of compensation that may be available such as loss of companionship for a spouse and loss of guidance for a child.
However, to ensure the amount provided is fair and full, it’s best to seek legal counsel. An attorney can evaluate the circumstances of the case and explain the types of damages that may be recoverable. Call The Miley Legal Group today: (304) 931-4088.
What is loss of consortium in a wrongful death claim?
Loss of consortium occurs when a spouse is deprived of the love, support and physical relations that are a fundamental part of a marriage. When one spouse is injured, disabled or suffers an accident at the hand of another, they can typically collect damages for loss of consortium if they decide to take legal action.
In some states, if a spouse dies because of another person’s negligence or error, his or her surviving spouse may file a wrongful death claim and seek loss of consortium damages as well. West Virginia is one of these states.
Loss of Consortium in Wrongful Death
The surviving spouse can seek damages for loss of consortium both before the death (if they were injured and unable to interact physically with their spouse) and for the loss of consortium they are currently facing after their loved one’s death.
Loss of consortium damages are hard to quantify. No judge or jury can fully grasp the emotional and personal effect a loss has had on a person, so the total damages a surviving spouse can get from loss of consortium varies greatly from case to case.
Typically, the following losses will be considered when determining total loss of consortium damages:
- sexual relations;
- emotional support;
- love; and
Often, loss of household services will also be lumped into this area, and judges will consider any:
- lost childcare;
- cooking; and
- other services that the deceased spouse provided when determining damages.
More on Loss of Consortium
Not every case lends itself to loss of consortium damages. Any individual who has lost a spouse to another person’s negligence or error should always speak to an attorney before seeking legal action. An attorney will be best equipped to evaluate the case and determine whether loss of consortium damages are a viable option. Victims in Clarksburg should contact the team at The Miley Legal Group today to get started.
What types of fatal accidents can result in a wrongful death claim?
Fatal accidents can stem from a variety of circumstances, such as traffic accidents, the use of defective products and medical malpractice. Families of individuals who are killed in these accidents may file a wrongful death claim if it was caused by another’s negligence.
In most cases, you will need to prove that someone else acted in a careless or reckless manner. But strict liability may apply in some cases, such as in cases of defective products.
Types of Fatal Accidents
Traffic accidents involving passenger cars, trucks, motorcycles, bicycles or pedestrians can result in death. In order to file a wrongful death claim, you would need to prove that someone else acted in a negligent manner to cause the accident. An example would be a crash on Highway 50 caused by a drunk driver or a truck that runs a red light and collides with a car.
Defective products also can cause fatal injuries. Strict liability may apply in some of these cases, meaning the plaintiff must prove only that the product was defective and it caused a loved one’s death – not that the manufacturer acted negligently.
A case of wrongful death may be filed as a result of medical malpractice. The plaintiff must demonstrate that a medical professional acted in negligent manner – that is, outside of the reasonable standard of care expected of other professionals – and that it caused a loved one’s death. Examples include a surgeon operating on the wrong site or a nurse administering the wrong medication.
You might be surprised to learn how often these types of cases occur. According to StateHealthFacts.org, in 2011 there were 157 paid medical malpractice claims in the state of West Virginia.
Seeking Help from a Wrongful Death Attorney in Clarksburg