Whether any particular death is “wrongful” in the eyes of the law will primarily depend on the reason the death occurred. All “wrongful” deaths have this fact in common: they are all premature deaths. But, not all premature deaths are wrongful. Let me explain further. If a disease process such as cancer or a birth defect causes the premature death of an individual and assuming all medical assistance was properly administered in a timely manner, then such individual’s premature death will not be considered a wrongful death in the eyes of the law.
Similarly, if the natural aging process is the reason an individual’s health declines and they die, then their death is not considered premature or “wrongful” in the eyes of the law either. But if an individual is fatally injured at any stage of their life by the negligent acts of another person, that individual’s death is both premature and wrongful. So, the death of an individual is “wrongful” when their death was a result of the negligent conduct of another person or company.
Who Has the Right to Bring a Wrongful Death Lawsuit, and Who Is Entitled to Recover for Their Losses?
West Virginia law provides that a personal representative may file a lawsuit for the wrongful death of a deceased individual to pursue compensation for the beneficiaries of the decedent’s estate — those who are family-related or financially dependent on the deceased individual.
Beneficiaries include the surviving spouse and children, including adopted children and step-children, brothers and sisters, parents, and any persons who were financially dependent on the deceased individual. It is common for the personal representative to also be a beneficiary of the estate.
What Is the First Step in Filing a Wrongful Death Claim?
Taking action now will secure your future rights to just compensation — as a beneficiary of the estate — for your injuries and losses. So, the first thing you must do is to ensure that you or someone you trust is appointed as the personal representative of the estate of your deceased family member. You may call my office for further information on how to obtain this appointment.
Why Has the Insurance Company Discouraged Me From Hiring a Lawyer for My Wrongful Death Claim?
Those that are responsible for causing the death of your loved one are interested in the decisions you make — as the personal representative of the estate — especially whether you will retain legal counsel or “handle” your own wrongful death case. They actually prefer that you “handle” the wrongful death case yourself because they know you won’t do all the things that a skilled trial lawyer will do to prepare the case. You see, while you are trying to figure out what the next step is, their own defense lawyers are getting to the evidence to manipulate the facts of the case to their favor. Whoever gets to the evidence first has a head start on the case.
Your legal case is a competition, a legal debate. Each party marshals evidence and legal theories to convince the court their position is correct. If you are the only person on your legal team, how will you compete against the legal team of the other side? You will have to face off, alone, against the insurance company, its seasoned defense lawyers, their expert witnesses, and unlimited financial resources.
What Work Will a Lawyer Do for Me in a Wrongful Death Claim?
Among the many other things that trial lawyers have to do in a wrongful death case, they will:
Conduct a proper scene investigation without missing or destroying evidence.
Identify all the fact witnesses with any knowledge of the cause of the fatal injuries.
Locate all the fact witnesses and obtain their sworn statements and affidavits.
Identify all the parties responsible for causing the fatal injuries to your family member.
Locate all the parties responsible for causing the fatal injuries to your family member.
Locate all the insurance coverage potentially covering their injuries and damages.
Litigate insurance coverage disputes with the insurance companies.
File a proper wrongful death lawsuit.
Respond to the defendants’ defenses, motions, and written discovery requests.
Prepare written discovery to the defendants.
Prepare all the plaintiff’s witnesses for deposition and trial testimony.
Prepare for and conduct cross-examinations of all the defense witnesses.
Conduct legal research and write legal briefs on key issues in the case.
Prepare a Pre-trial Memorandum addressing all legal issues to be tried by the court.
Represent their client in court proceedings on all pre-trial issues.
Prepare for trial, including the preparation of arguments, evidence, and witness testimony.
Conduct a jury trial of their case.
File post-trial motions and file an appeal, as required.
What Are My Damages Worth?
There is no one-size-fits-all formula for determining what your recovery should be. Your attorney will consider all aspects of your damage, insurance law, and coverage issues, as well as offset amounts for Worker’s Compensation, ERISA, and Medicare reimbursements. Your attorney’s specialized experts can determine future lost wages and medical expenses. Other factors that may help determine value are: who was at fault and the severity of damage and the extent and duration of injuries.
If you have any additional questions, contact our Morgantown wrongful death attorneys by sending a message online or calling (304) 594-1800 for a free case review.