Tragically, last year, 819 people lost their lives in car crashes on Virginia roads.  While this number is down slightly from the number of traffic-related deaths in 2017, it is still significantly higher than the 700 fatalities that occurred on Virginia roads in 2014, since which the number of deaths has been steadily increasing, suggesting that our roads are getting more congested, and more dangerous.

While I pray that you will never need this information, here are some important things to know about cases arising from traffic-related fatalities in Virginia.

Who can file a wrongful death suit?

Historically, Virginia law is based on English Common Law (law made by the decisions of judges), under which there was no legal right to recover compensation for a death caused by another person’s negligence.  Indeed, under the Common Law, while there was a long-standing right to seek compensation for one’s personal injuries, if the injured person died as a result of the injuries (or for any other reason), his claim for compensation abated (was extinguished).  Part of the thinking seemed to be that, because the intent behind a claim for personal injury is to compensate the injured person for her damages (physical pain & suffering, mental anguish, inconvenience, medical expenses, lost wages, etc.), if a person is no longer alive to be compensated, there was no longer a need to compensate her for those damages.

Recognizing that the death of a loved one often causes real-world damages to spouses, children, and other near relatives, Virginia’s legislature passed a statute creating a cause of action allowing certain near relatives and dependents (beneficiaries) of a decedent to seek compensation for the damages caused by the loss of their loved one.

Because the decedent no longer has standing to file a lawsuit, and the purpose of the newly-created action is to provide compensation to the beneficiaries, the lawsuit is not brought in the name of the decedent but must be brought in the name of a personal representative of the estate of the deceased person and for the benefit of the beneficiaries.

In Virginia, a personal representative of an estate must be over the age of 18 and must be appointed by a Court, which must find that the person is suitable and competent to fulfill the fiduciary duties of the position.

Who can receive compensation?

The purpose of a wrongful death suit is to compensate certain near relatives (beneficiaries) for certain damages associated with the loss of their loved one.  Depending on the circumstances of the case, those beneficiaries can include one’s spouse, children, grandchildren, parents, siblings or other dependent relatives who are members of the same household as the decedent.

Punitive and Compensatory damages

What can be compensated and how is the amount calculated?

“Damages” is the word we use to describe all of the bad things that happen because of an auto collision for which the law allows someone to receive money. While nothing can undo the injury or death, “compensatory damages” are the losses that must be considered in arriving at an amount of money that is intended, to the extent that money can, to put a person who has suffered injury back in the position he was in before the injury occurred.

In the context of a wrongful death case, the compensable damages are suffered by the decedent’s relatives and dependent’s and include:

  • Sorrow, mental anguish, and loss of solace (companionship, guidance, advice, etc.) suffered by beneficiaries;
  • Loss of the decedent’s income (to the extent that it is used to provide for the beneficiaries);
  • Loss services, care, protection, and assistance the decedent provided to the beneficiaries;
  • Medical expenses for the care and treatment of the decedent’s injuries; and
  • Reasonable funeral expenses.

“Punitive Damages” is the expression we use to describe money that is sought, in addition to compensatory damages, from someone who causes an injury or death through conduct that is egregious and shocking (like driving while severely intoxicated or racing on a highway).  The additional money sought is intended, again to the extent that money can accomplish this, to punish that individual and to, hopefully, deter others from engaging in similar conduct.

When must suit be filed?

Like all personal injury cases, a wrongful death case is governed by a statute of limitations, which is a law that establishes the time within which a lawsuit must be filed.  In general, as with all personal injury cases, a wrongful death case must be filed within two years of the date of the injury that causes the death, but the wrongful death statute also contains provisions that can extend that time-period.

If a lawsuit is not filed within the time prescribed by the statute of limitations, the right to pursue that claim will be completely barred, so it is important to consult with an experienced personal injury attorney to make sure your right to pursue the claim is protected.

Contributory negligence (What is it and how might it apply?)

Contributory negligence is a legal doctrine that says that if a person is injured in an auto collision, but that person’s own conduct was negligent and contributed to causing the collision, then the injured person cannot recover compensation from any other person involved in the collision, even if that person was more negligent than the injured person.

The same rule applies to wrongful death cases.  If the decedent was negligent, and his negligence contributed to causing the collision and his own death, then his beneficiaries cannot recover compensation from the other person involved in the collision, even if that person was also negligent.

But in wrongful death cases, the contributory negligence rule also applies to the decedent’s beneficiaries.  That is, if a beneficiary was negligent, and his negligence caused the collision and the death of the decedent, then that particular beneficiary cannot recover money if the personal representative of the decedent’s estate brings a claim and obtains compensation for the decedent’s death.

When should I talk to a personal injury lawyer?

Wrongful death cases can be highly complex.  And while legal action may be the last thing on your mind after the loss of a loved one, even if you are not ready to hire an attorney, it makes sense, as soon as possible, to at least contact an experienced personal injury lawyer who can assess the facts and the evidence of your case, explain the law and your rights, and help you solve some of the problems resulting from the loss and avoid any pitfalls that might arise.

About the Bergeron Law Firm

Bergeron Law is a personal injury practice serving the Northern Virginia area.  Our mission is to provide all our clients with the highest quality of legal representation and unsurpassed dedication and customer service.

Steve Bergeron understands that a successful attorney-client relationship depends on his ability to understand each client’s needs and objectives.  Bergeron Law will be there for you with the information, advice, and advocacy you need to help you get back to your life.

For more information about personal injury and auto accidents, contact our office today at 703.813.6460, or visit our website: