A wrongful death action is brought by certain relatives or beneficiaries of a decedent and seeks recovery for their loss as a result of the death of the decedent. The focus on this type of action is not on the damages incurred by the decedent, but on the loss incurred by the plaintiff or plaintiffs.
- Plaintiffs and Beneficiaries
The Wrongful Death Statute specifies that any action brought under it should be brought by and in the name of the personal representative of the decedent. See Va. Code § 8.01-50. The Act also sets forth four distinct classes of beneficiaries who may be entitled to recover damages for a wrongful death, and addresses the distribution of the recovery among the beneficiaries. The jury may apportion the damages to the beneficiaries, and if it does not, then the Court must do so when it enters Judgment on the verdict. See Va. Code § 8.01-54.
The first class of plaintiffs include the surviving spouse, children of the deceased or the children of the decedent’s deceased children. If there are no beneficiaries who fir in the first class, then the second class includes parents, brother and sisters of the decedent and any other relative primarily dependent on the decedent for support or services and is a member of the same household. If the decedent leaves behind a surviving spouse and parents, but no children or grandchildren, then the third class of beneficiaries includes both the surviving spouse and the parent(s). If there are no survivors under the foregoing classes, then the fourth class includes certain other relatives of the decedent. See Va. Code § 8.01-53.
- Statute of Limitations
A wrongful death action must be filed within two years from the date of death. See Va. Code § 8.01-244.
- Damages
The Statute sets forth the elements of damages which may, generally, be recoverable in an action brought under Virginia’s Wrongful Death Act. See Va. Code § 8.01-52. Those elements are:
- Sorrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent;
- Compensation for reasonably expected loss of income of the decedent and services, protection, care and assistance provided by the decedent;
- Expenses for the care, treatment, hospitalization of the decedent incident to the injury resulting in death;
- Reasonable funeral expenses; and
- Punitive damages for willful or wanton conduct or such recklessness as evinces as conscious disregard for the safety of others.
- Compromise
- Prior to the Commencement of the Wrongful Death Action
No wrongful death action may be maintained where the decedent entered into a compromise of any claims that he or she was entitled to bring prior to his or her death. See Va. Code § 8.01-51.
- Of the Wrongful Death Action Itself
Any settlement of a wrongful death claim must be approved by a Circuit Court in Virginia. If the claim is settled without pending litigation, any interested party (the personal representative of the decedent, any potential defendant, or any interested insurance company) may petition the Court for approval of the settlement. See Va. Code § 8.01- 55.
- Settlement Information Must be Made Public
A recent opinion of the Supreme Court of Virginia explained that settlements of Wrongful Death lawsuits must be submitted to the Court for approval, and the records must be made a part of the public record in that Court. In Perreault, Am’x v The Free Lance-Star, 276 Va 375, 666 S.E.2d 352 (2008). In that case, the parties submitted their dispute to a private mediation while the lawsuit was pending in the Court, and the Court required the parties to stipulate to the terms of their settlement agreement in a memo to be filed with the Court records, even though the settlement was achieved in a private mediation.
- Prior to the Commencement of the Wrongful Death Action
