Who Can Bring A Wrongful Death Case In West Virginia, And What Damages Are Recoverable?

In West Virginia, wrongful death cases follow the rules set forth primarily by three statutes, West Virginia Code Sections 55-7-5 through 55-7-7. These statutes state that only the duly appointed personal representative of the deceased can file a wrongful death claim, and they allow the court to award a “fair and just” amount for four general types of damages.

People often wonder if the personal representative’s involvement means that a wrongful death case will go through probate. They also wonder whether they might be left out of the award or settlement. However, the award or settlement is not part of the estate that goes through probate, and even though the personal representative must file the claim,  other potential beneficiaries will be placed on notice of a recovery and have an opportunity to make a claim for a portion of the proceeds resulting from the claim.

A Quick Look At What The Statutes Say

Section 55-7-5 is relatively simple. Essentially, it says that the wrongdoer’s liability in a wrongful death claim survives the victim’s death as well as the wrongdoer’s death.

Section 55-7-6 addresses who can bring the claim and what damages they can hope to recover. In West Virginia, every wrongful death action must be in the name of the personal representative, and that personal representative files the claim on behalf of all the potential beneficiaries. This means that one person acts to bring the claim, but all the potential beneficiaries will have an opportunity to claim they are entitled to part of the proceeds from the claim.

By law, the potential beneficiaries include any surviving spouse and children, including adopted children and stepchildren. They also include siblings, parents and anybody who was financially dependent on the deceased or who would otherwise be “equitably entitled to share in such distribution.” This last category can be something of a catch-all, and we have seen a couple of situations where it came into play. In one situation, we represented a client who suffered a severe brain injury and lived for several years before she passed away. She had been raised by a foster family that had never adopted her but had helped care for her after her injury. Based on their relationship, the court decided they were “equitably entitled” to a share and, in fact, received more of the settlement than the decedent’s blood relatives who had not had much presence in her life.

Section 55-7-6 also identifies the types of damages people can try to recover with a wrongful death action. Damages are recoverable for such things as:

• Reasonable funeral expenses
• Medical expenses associated with the injury that led to death     
• Loss of the decedent’s earnings or earning capacity
• Sorrow, mental anguish, loss of companionship and other emotional damages suffered by the decedent’s beneficiaries  
• Loss of the decedent’s services, protection, and care      

Notably, the statute says that a jury verdict “shall” or must include these considerations, but in some cases, the verdict may also include other damages. Also, the part about the loss of services, protection and care means that the claim can include the  value of the services previously provided by the decedent. For example, if a negligent driver hits and kills a stay-at-home mother, the loss of services might include costs or value for child care, tutoring and other household chores the mother previously performed.

Finally, Section 55-7-7 gives the personal representative the authority to settle a wrongful death claim. Here, it’s important to understand that the court must review and approve the settlement. This is a safeguard to help ensure that the settlement  is in the best interests of the estate and all potential beneficiaries.

The Personal Representative Does Not Get Everything

Again, West Virginia says that the personal representative must bring a wrongful death claim but does so on behalf of all potential beneficiaries. Family members don’t have to worry that they won’t be included. Regardless of whether the case is resolved by verdict or settlement, they won’t be left out.

All potential beneficiaries should receive notice and have their opportunity to make a claim or waive their claim. They can then agree on how to divide the verdict or settlement, or, if they cannot do so, the court will decide. The verdict or settlement is then distributed through a separate proceeding outside of probate court. It does not go through probate.