Published: January 8, 2014
By: E. Richard Ogrodowski
This post focuses on the very basics of a wrongful death action in West Virginia. W.Va. Code § 55-7-5 et seq.
What is a wrongful death action in West Virginia? West Virginia permits the recovery of damages due to the death of a person from a wrongful act, neglect, or default. W.Va. Code § 55-7-5. If damages are recovered, they “shall be distributed to the surviving spouse and children, including adopted children and stepchildren, brothers, sisters, parents and any persons who where financially dependent upon the decedent at the time of his or her death or would otherwise be equitably entitled to share in such distribution ….” W.Va. Code § 55-7-6(b). However, “if there are no such survivors, then the damages shall be distributed in accordance with the decedent’s will or, if there is no will, in accordance with the laws of descent and distribution” as contained in the West Virginia Code. W.Va. Code § 55-7-6(b).
Who can bring a wrongful death action in West Virginia? The wrongful death action “shall be brought by and in the name of the personal representative of such deceased person….” W.Va. Code § 55-7-6(a).
What are the recoverable damages in a wrongful death action in West Virginia? A jury, or if there is no jury, the court, may award a broad array of damages. The authority for this is in W.Va. Code § 55-7-6(b): “In every such action for wrongful death, the jury, or in a case tried without a jury, the court, may award damages as to it may seem fair and just, and, may direct in what proportions the damages shall be distributed ….” Further, the wrongful death statute specifies that “[t]he verdict of the jury shall include, but may not be limited to, damages for the following: (A) Sorrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent; (B) compensation for reasonably expected loss of (i) income of the decedent, and (ii) services, protection, care and assistance provided by the decedent; (C) expenses for the care, treatment and hospitalization of the decedent incident to the injury resulting in death; and (D) reasonable funeral expenses.” W.Va. Code § 55-7-6(c)(1).
What is the statute of limitations for a wrongful death action in West Virginia? “Every such action shall be commenced within two years after the death of such deceased person, subject to the provisions of section eighteen, article two, chapter fifty-five.” W.Va. Code § 55-7-6(d).