Attorney Robert “Bob” Byrne
Damages in Virginia Wrongful Death Actions
Losing a family member or other loved one is devastating. When we lose a loved one, everything changes for us. We may be overwhelmed by grief and have our sorrows compounded by financial problems. These problems can arise because of the lost income or financial support we had previously received from our family member. Things get worse because of the new and unexpected expenses we have to meet for funerals and similar arrangements.
If your loved one’s death resulted from a corporation’s or another person’s negligence, your family may be able to recover compensation in what is called a “wrongful death action.” Virginia law permits a number of different types of “damages,” or categories of compensation, in a wrongful death action.
There are several things that make a wrongful death action different than a personal injury claim.
First and foremost, the parties who get the money in a wrongful death action are called “beneficiaries.” Beneficiaries are family members of the person who died. These beneficiaries are identified by statute. The statute in Virginia is Va. Code sec. 8.01-53, entitled “Class and Beneficiaries; When Determined.”
Second, the party who brings a claim for the beneficiaries is a personal representative, typically an administrator of the estate. The estate administrator has the lawsuit filed in their name and the action is filed to recover money damages for the beneficiaries.
Third, and as the focus of this article, there are types of damages that are specific to wrongful death actions. According to Virginia law, there are five separate categories of damages that a beneficiary can recover in a wrongful death action. Those categories are the following:
- Any sorrow, mental anguish, or loss of solace suffered by any beneficiaries due to the loss. Virginia law permits a recovery of solace to include “society, companionship, comfort, guidance, kindly offices, and advice” of the deceased.[i]
- Any reasonably expected lost income the beneficiaries will lose due to the deceased’s passing;
- Any reasonably expected loss of services, protection, care and assistance which the deceased provided to the beneficiaries;
- Any treatment for the care, treatment, and hospitalization of the deceased caused by the injury that resulted in his or her death; and
- Reasonable funeral expenses.
Of these types of damages, the second, fourth, and fifth categories are for “economic damages.” These are pocketbook damages, the type of expenses that can be proven by a bill, by an invoice, or by a receipt. Even though these economic damages are easy to calculate, the insurance company for the defense may still try to discount these expenses in a number of ways.
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The insurance company might, for example, claim that the charges that were incurred were not reasonable. They may say that a hospital’s charges were not reasonable or in line with the charges that other hospitals charged. They may contest the lost income that was claimed by questioning the decedent’s employability or how long the decedent would have continued working. They may contend that the funeral expenses covered items — such as a reception, alcohol served, or other items — as being outside of the customary charges.
It is important to recognize that the first and third categories of wrongful death damages under the statute are for “noneconomic damages.” In contrast to economic damages, noneconomic damages are for things that are not easily determined by a dollar amount. They are not things that can be bought or sold. There is no receipt for them. But these are the most important things in life, such as relationships, love, mentorship, friendship, guidance, help, and support.
Losing these noneconomic benefits are the worst losses that occur because of the death of a loved one. Despite that, many attorneys tend to discount or underestimate these losses. They agree with insurance companies that these losses should not receive much compensation because they are not able to be calculated with any precision. Or, they will buy into the insurance company’s argument that these losses are not worthy of much money because they won’t bring back the lost family member. Perhaps the defense will focus on the fact that the beneficiaries had a strained relationship with the deceased, and the insurance company may focus on that to drive down the value of the claim.
These arguments are garbage and they are destructive. Every person’s life has enormous value, not because of what they produce or what type of job they have. Instead, these lives have limitless value because of the relationships they create, and love they bring, and the help they provide to others in this difficult world. It is vital that we recognize the value of these noneconomic things and fight to get the true worth of what has been lost.
We take the time and effort necessary to truly understand how a loved one’s passing has impacted each beneficiary. We want to get to know the deceased person and we want to stand in their shoes to understand how they saw their loved ones. Getting to know the deceased person in this way helps us know how their loss has impacted each beneficiary.
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In some cases this is easier than in others. It may be the case that the deceased person had a strained or damaged relationship with a beneficiary. Perhaps they needed to reconcile but never did so before the event that took the life of the decedent. We know that the lack of closure caused by the loved one’s untimely passing is something that will always be a burden of some sort. We can deal with those situations to explain the pain that will result.
If you have lost a loved one due to a corporation’s or another person’s fault or negligence, you must know your rights to seek justice and compensation. Contact experienced Virginia wrongful death attorney Robert E. Byrne, Jr. at (434) 817-3100 or by email at [email protected] for a free consultation and to obtain the benefits for your family that the law requires. There is no fee unless we obtain a recovery for you.
[i] Virginia Civil Jury Instruction 9.100, Damages: Death by Wrongful Act.
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