A Comparison (Continued from page 24)
Virginia The Wrongful Death Act in Virginia
was first enacted in 1871. The purpose of the Act is to compensate the ben- eficiaries of the deceased and not to compensate for the damages suffered by the deceased.16
The Act grants the
beneficiaries the right to sue for their losses with all damages recovered belong to the individual beneficiaries and not to the estate.17 In a Wrongful Death case, there is no
accompanying cause of action for sur- vival benefits. Virginia Code §8.01-50, et seq., sets out much of what you need to know about a Wrongful Death action and should be reviewed in detail before you file suit. The Personal Representa- tive of the estate brings the wrongful death action on behalf of the beneficia- ries.18
Because of the manner in which
damages are distributed and wrongful death cases are settled, finding and list- ing all beneficiaries is important and your complaint needs to list all of the beneficiaries.19 The damages allowable in a Wrongful
Death action are those which seem “fair and just”, with these terms being given a broad and liberal construction.20
The
verdict shall include, but may not be limited to the following damages: 1. Sorrow, mental anguish, and solace which may include society, com- panionship, comfort, guidance, kindly offices and advice of the decedent;
2. Compensation for reasonably expected loss of (i) income of the decedent and (ii) services, protec- tion, care and assistance provided by the decedent;
16
Virginia Code § 8.01-50; Cassady v. Mar- tin, 220 Va. 1093, 266 S.E.2d 104 (1980). 17 Virginia Code § 8.01-50. 18 Virginia Code § 8.01-50 B. 19 Virginia Code § 8.01-55.
20
Virginia Code § 8.01-52; Sawyer v. United States, 465 F. Supp. 282 (E.D. Va. 1978).
26
3. Expenses for the care, treatment and hospitalization of the decedent incident to the injury resulting in death;
4. Reasonable funeral expenses; and 5. Punitive damages may be recovered for willful or wanton conduct, or such recklessness as evinces a con- scious disregard for the safety of others. Damages recoverable under 3, 4 and 5 above shall be specifically stated by the jury or the court, as the case may be. Damages recover- able under 3 and 4 above shall be apportioned among the creditors who rendered such services, as their respective interests may appear. Competent expert testimony shall be admissible in proving damages recoverable under 2 above. The court shall apportion the costs of the action as it shall deem proper. (Code 1950, § 8-636.1; 1974 c. 444; 1977, cc. 460, 617; 1982, c. 441). When a verdict is rendered, the
court or jury must specifically state the amount for medical expenses and funer- al expenses, and specify how the funds are to be prorated among the creditors. The court must also allocate other dam- ages among the beneficiaries.21 Because pecuniary losses are recover-
able, you need to present evidence for reasonably expected loss of income and services. Evidence of the deceased’s background, training and educational level, past earnings, and future earnings capacity are important to present to the trier of fact. Life tables are codified in Virginia and you may ask that they be recognized through judicial notice.22 The value of services needs to be proven through evidence of contribution or monetary value of the services and in- cludes household services.23 The beneficiaries can recover for their
sorrow and mental anguish, to include loss of decedent’s society, companion-
21 Virginia Code § 8.01-55. 22 Virginia Code § 8.01-419.
23
Vandergrift v. United States, 500 F. Supp. 229 (E.D. Va. 1978).
Trial Reporter
ship, comfort, guidance, kindly offices, and advice.24
Va. Code §8.01-52. There is
no separate claim for loss of consortium, but you can effectively recover those damages under this provision. While the mental anguish to the decedent is not recoverable, you can present evidence of the decedent’s pain and suffering through the eyes of the beneficiaries. Their sorrow and mental anguish is compensable, so their knowledge and observations of the decedent’s anguish and suffering are relevant.25 The Virginia Code sets out the class
of beneficiaries and how they are deter- mined.26
The Personal Representative
has the right to bring the suit, but is merely a surrogate for the beneficiaries. While the Personal Representative may settle a wrongful death case, they must apply for court approval.27
The petition
must state the amount each benefi- ciary is receiving, provide notice of the hearing to approve the settlement to all intended parties, and give them an opportunity to attend or endorse an order agreeing to the settlement and distribution. No settlement is final until the court approves the settlement, so any release should contain language that preserves the right to pursue the action if the court rejects a settlement.28 After resolution, the Personal Rep-
resentative must repay any liens prior to any distribution. While some medi- cal liens are statutory (See Va. Code §8.01-66.2, et. seq.), there is a very help- ful anti-subrogation statute in Virginia.29 The Virginia Code prohibits, with some exceptions, health insurance companies from asserting a lien.30
ERISA, federal,
and state legislated insurance plans may assert a lien and, in determining whether your plan is covered by ERISA, look at the policy to determine whether the in-
24 Virginia Code § 8.01-52. 25
26 Virginia Code § 8.01-53. 27 Virginia Code § 8.01-55. 28 Virginia Code § 8.01-55.
29 Virginia Code § 8.01-66.2 et. seq. 30 Virginia Code § 38.2-3405.
Fall 2008
Virginia Iron, Coal & Coke Co. v. Odle’s Administration, 128 Va. 280, 105 S.E. 107 (1920).
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