As trial lawyers for personal injuries We are often facing the issue of what happens to a case in the event that the victim dies before the matter is concluded. Another question we are asked is what happens when the individual who caused the injury passes away before the case is settled.
The loss of a person was considered to be a bar for seeking a claim. It resulted in instances where the person who was injured was unable to pursue their claim. This unfairness was recognized, and law has changed to ensure that personal injury claims are able to be pursued even after the death of an injured party or the person who caused the harm.
Virginia Code SS 8.01-25 (1950) states the following “ Every cause of action, whether legal or equitable, that can be recognized in Virginia, or in the Commonwealth of Virginia, shall last until the passing away of the individual in whose favor an action exists or can be claimed or the person in the favor of whom this cause was or each of them.”
The death of an individual eliminates the right to sue but it creates a number of legal and procedural issues an attorney for personal injuries has to manage on behalf of his client. In the first place, since a lawsuit is not able to be brought on behalf of the deceased, a person has to be designated by the court as the decedent’s personal representative. Most often, a family member is appointed as the personal representative. When the appointment is confirmed then the case will be brought with the help of the personal representative of the estate of deceased. If the plaintiff’s death occurs during the time that the case is being heard in the courtroom the personal representative has to be appointed, who will then named the plaintiff’s replacement and the matter continues for the deceased’s estate.
This procedure must be followed when the individual to whom the claim has been filed (the defendant) dies prior to the time that suit is filed, or following the filing of the suit. The process of selecting an individual representative of defendants when it is pre-suit in nature can be a little difficult because the attorney for the plaintiff has to identify a person who will be a representative. When a lawsuit is in the process after the death of the defendant The defense attorney typically will ask a relatives member of the deceased person to act in this capacity.
An issue of practical importance for the lawyer representing the plaintiff in damages in cases where the death of a person resolve and is taken to trial. This means that there’s an actual risk that the outcome will be less than the amount that is needed to adequately and fairly pay the victim. The risk is posed on two different levels. If the victim individual is dead the jury may have to look at the reason or merits of awarding funds to the estate of a deceased individual and whether it is logical to make that decision. However, suppose that someone who died was the one who caused the harm in the first place. In this situation, the jury will be likely to be sympathetic towards them or even question the legitimacy of holding those responsible even though they were not present to defend themselves , and thus give a lesser verdict.
An experienced personal injury lawyer is able to tackle the matter that the death of an individual who could affect the verdict of the jury on damages, by emphasizing and talking about it in the selection of jurors, in the opening argument, the closing argument and also by soliciting juror instructions that address this matter.
In our blog post of the same name the case of a deceased person due to the negligence or carelessness of someone else an individual, a wrongful death lawsuit is the legal and only claim you can pursue in order to obtain the compensation. Read Virginia Code SS 8.01-56, (1950). What is the appropriate action to take in the event that it’s not clear if the person who was injured was killed as a result an injury, or if one of the defendants disputes the accident caused death? The fact that the plaintiff died because of injuries resulted from the negligence of the defendant is important in determining the type of the damages recoverable. In the past, we’ve written about prior to a claim for negligence when a person has been hurt, the person who was injured has the right to receive compensation to cover medical bills for physical, emotional, as well as emotional discomfort, as well as wage loss.
Rakin clarifies that, during a wrongful-death action that the damage recoverable is for the purpose of compensating close relatives of the deceased, due in part in their emotional trauma and loss. However, Virginia statutes make clear the legality to pursue a survival case to seek personal injury damages as well as an action for wrongful death seeking compensation for wrongful deaths within the same instance. When two survival actions as well as a wrongful death case is pursued in the same court lawyers for the plaintiff’s attorney has the option of choosing which one to pursue the ultimate recovery on since there is only one remedy for injuries caused by the negligent defendant. The court’s ruling was judicious. Virginia Supreme Court in Centra Health, Inc. (v. Mullins, 277 Va. 559 (2009) the decision of the action that they will seek to collect on, and therefore the damage to be recouped is not required to be decided until the jury’s verdict.
A person’s death can lead to legal and practical concerns which need to be dealt with. If you, or someone you love are facing a lawsuit it is advisable to speak with experienced personal injury lawyers like Curcio Law. We will be happy to assist.