West Virginia Wrongful Death Attorneys

Have you lost a loved one due to an act of negligence? Losing someone close to you is devastating under any circumstances, but when a loved one suffers an untimely death because of the negligent or reckless actions of another person or party, the pain is much more difficult to endure.

Since 1970, the attorneys at Bailey, Javins & Carter, L.C., have helped families like yours recover compensation after a loved one was taken away from them too soon. Our lawyers have in-depth knowledge of West Virginia wrongful death statutes, and we put our extensive experience to work to stand up for those who have lost someone close to them, and to help ensure that those responsible for their death are held fully accountable.

We will help you get answers about why this tragedy occurred. We will conduct a full investigation of the circumstances that resulted in your loved one’s death, and we will gather all the facts and preserve all the critical pieces of evidence, so we can get to the bottom of what happened. While we know that nothing can bring back a lost loved one and there is no amount of money that can ever be considered fair compensation, we will help you recover everything you are entitled to.

Strong Wrongful Death Representation Inside the Workplace and Out

Losing a loved one is an unimaginable tragedy, and the pain is compounded when that death is caused by the negligence or wrongdoing of another person or company. During this incredibly difficult time, you need an advocate who understands the legal complexities and can fight for the justice your family deserves. 

Our law firm provides compassionate and effective representation to families who have suffered the wrongful death of a loved one, whether the tragedy occurred in the workplace or elsewhere.

We understand that you are in a state of shock and grief. Our primary goal is to handle the legal burdens so you can focus on healing and being with your family. We want you to know that we will be here for you throughout this entire process, and our support extends far beyond just the wrongful death claim itself. There will be additional issues related to your loved one’s estate that need to be addressed even before the claim can be formally pursued.

These matters can be complicated and time-consuming, but you can rest assured that we will handle every detail. From the initial probate filings to the final judicial approval of a settlement at the end of the case, we will be by your side, managing all the complex legal issues that may arise. This frees you from the stress and confusion, allowing you to be present for your family during this trying time.

A History of Fighting for Workers and Their Families

Our reputation was built on the foundation of successfully representing victims of coal mine accidents and those suffering from black lung and other occupational lung diseases. 

The coal mining industry, while a cornerstone of many communities, is fraught with inherent dangers. We have stood by countless families who have lost a loved one due to a mining accident or a long-term, preventable illness caused by their work environment. 

We have a deep understanding of the specific laws and regulations that govern this industry and a history of holding negligent companies accountable. Our work in this area is extensive, and we have represented fallen miners and their families from all over West Virginia, including those from mines such as:

• Seneca Coal Pinnacle Mine
• Patriot Coal Brody Mine
• Upper Big Branch
• Rock Springs Development Mine
• Robinson Run Development Mine
• Spartan Mining’s Roadfork 51 mine
• Murray’s Marion County Coal Mine
• Pocahontas Mine

This deep knowledge of the industry is invaluable when pursuing a wrongful death claim in a complex industrial setting.

We know the corporate structures, the safety protocols (or lack thereof), and the legal strategies required to build a strong case against powerful corporations. This history of successful representation has instilled in us a profound commitment to protecting the rights of workers and their families, and we carry this dedication into every case we take on, regardless of the industry.

Wrongful Death Lawsuits in West Virginia: Understanding Your Rights

A wrongful death claim is a civil action that seeks monetary damages when a person’s death is caused by the negligence, carelessness, or intentional act of another person or party. In essence, it is a personal injury lawsuit where the injured party is no longer alive to file the claim themselves. Instead, the claim is brought by the decedent’s family or estate. It’s important to understand that this type of legal action is separate from any criminal proceedings that may be ongoing.

Even if the person responsible for the death is acquitted in a criminal court, a civil wrongful death claim can still be successfully pursued and can result in a significant financial recovery for the family. The legal standard in a civil case is lower than in a criminal case, focusing on a “preponderance of the evidence” rather than “beyond a reasonable doubt.” This means that the jury or judge must find it more likely than not that the defendant’s actions caused the death. Wrongful death lawsuits are critical for providing financial stability to the family left behind and for holding the responsible parties accountable for their actions, which can help prevent similar tragedies from happening to others.

The Foundation of a Wrongful Death Claim

To establish a valid wrongful death claim in West Virginia, specific legal requirements, often referred to as elements, must be met. These elements ensure that the case meets the legal criteria for negligence or willful misconduct. The ability to demonstrate these four points is fundamental to the success of the claim:

1. Duty of Care

The first step is establishing that the defendant (the person or party being sued) owed a duty of care to the deceased person. A duty of care is a legal obligation to act reasonably to avoid harming others. In a car accident, for example, every driver has a duty to obey traffic laws and operate their vehicle safely. A doctor has a duty to provide medical treatment that meets the accepted standard of care. This duty varies depending on the relationship between the parties and the context of the situation.

2. Breach of Duty

Once the duty of care is established, the next requirement is demonstrating that the defendant breached that duty. A breach occurs when the defendant fails to act as a reasonably prudent person would have under the same circumstances. If a property owner knew about a dangerous hazard but failed to fix it or warn visitors, they may have breached their duty. If a truck driver violated federal rules regarding mandatory rest periods, leading to fatigue and an accident, that is a breach. This element focuses on the unreasonable action or inaction that led to the death.

3. Causation

Causation is often the most complex element. It requires showing a direct link between the defendant’s breach of duty and the decedent’s death. This is broken into two parts: actual cause (or “but-for” cause) and proximate cause (or legal cause). The death must have occurred because of the defendant’s negligent act, and it must have been a reasonably foreseeable consequence of that act. If the death had occurred regardless of the defendant’s actions, causation cannot be proven.

4. Damages

Finally, the family must demonstrate that they suffered actual, measurable damages as a result of the death. Damages are the losses—both economic and non-economic—for which the family seeks compensation. If a legal claim meets the first three elements but there are no identifiable losses for the family, a successful wrongful death action cannot proceed. The categories of these damages are detailed in a later section.

Who Can File a Lawsuit in West Virginia?

In West Virginia, the law dictates a very specific process for filing a wrongful death claim. The lawsuit cannot be filed directly by the surviving family members themselves. Instead, the action must be brought by the Personal Representative (or Administrator) of the decedent’s estate.

The Role of the Personal Representative

The Personal Representative is an individual appointed by the West Virginia circuit court, typically through a process called probate, to manage the affairs of the deceased person’s estate. This person acts as the legal stand-in for the decedent and is responsible for prosecuting the wrongful death claim on behalf of all eligible beneficiaries. The representative must proceed with diligence, seeking the maximum recovery allowable under the law for the benefit of the surviving relatives. This individual often needs to possess strong organizational capabilities to manage the complex legal documentation.

Statutory Beneficiaries

While the Personal Representative files the claim, any monetary recovery is ultimately distributed to the beneficiaries defined by West Virginia law. The distribution of the settlement or verdict is determined based on the relationship to the deceased, following a specific statutory hierarchy. The eligible beneficiaries generally include:

• Spouse and Children: The surviving spouse and any surviving children (including adopted children and stepchildren who were dependent on the deceased) are typically the first in line.
• Parents: If there is no surviving spouse or children, the parents of the deceased are the next group of beneficiaries.
• Siblings: If there are no surviving spouse, children, or parents, any surviving siblings of the deceased are eligible.
• Other Dependent Relatives: In some cases, other dependent relatives who shared the decedent’s home and were financially supported by them may be eligible for compensation.

It is critical to note that the distribution of damages for non-economic losses, such as sorrow and loss of companionship, is often divided among these relatives based on the degree of dependency and suffering they endured.

The Crucial Time Limit: Statute of Limitations

In West Virginia, a wrongful death action must be initiated within a strict time frame, known as the statute of limitations. If the lawsuit is not filed with the proper court within this period, the family will almost certainly be barred from seeking recovery forever, regardless of how strong the evidence is.

The general rule in West Virginia is that a wrongful death claim must be filed within two years of the date of the person’s death.

This two-year deadline begins running from the actual date the life was lost, not the date the injury occurred. There are very few exceptions to this rule. One such exception is the “discovery rule,” which may apply in certain medical negligence cases where the connection between the negligence and the death was not immediately known or reasonably discoverable. However, relying on an exception is difficult and uncertain. Because evidence can disappear, witnesses can move, and memories can fade, it is always best practice to begin the legal process as soon as possible after the tragedy occurs.

Categories of Damages in a Wrongful Death Action in West Virginia

When a wrongful death claim is successful, the family may be entitled to several categories of damages. These damages are designed to compensate the family for both their financial losses (economic) and their emotional suffering (non-economic). The goal of these damages is to help the family regain some semblance of the life they had before the tragedy occurred.

Economic Damages (Tangible Losses)

These damages represent verifiable financial losses. They are generally calculated using financial records, pay stubs, and actuarial analysis.

• Medical Bills Related to the Injury: This includes all costs associated with the medical care and treatment the loved one received from the time of the injury until their passing, including ambulance services, hospital stays, doctor fees, and medications.
• Funeral and Burial Costs: The costs associated with laying a loved one to rest, including wake services, cremation, burial plots, and headstones.
• Lost Wages and Benefits: This is a crucial component of many wrongful death claims. It includes the lost income and benefits the decedent would have earned from the time of their death until their expected retirement age, had they lived. The calculation of future lost earnings requires a careful analysis by an economist or other financial professional to account for anticipated raises, inflation, and the decedent’s projected career path.
• Loss of Services and Care Provided by the Decedent: This category accounts for the value of the non-monetary, yet vital, contributions the deceased made to the family unit. This can include the cost of replacing services such as childcare, tutoring, household maintenance, landscaping, or financial management, which the deceased provided free of charge.

Non-Economic Damages (Intangible Losses)

These damages are intended to compensate the beneficiaries for the emotional and relational losses that cannot be easily assigned a monetary value.

• Sorrow, Mental Anguish, and Solace: This is a key category intended to compensate the family for the profound emotional suffering they are enduring due to the loss of their loved one. This includes the distress, grief, and sadness felt by the immediate family members.
• Loss of Companionship, Society, Guidance, Comfort, Kindly Offices, and the Advice of the Decedent: This category recognizes the irreplaceable loss of the relationship and emotional support the deceased provided to their family members. For a child, this loss includes the guidance and instruction that a parent would have provided through their formative years. For a spouse, it includes the shared life experiences and emotional comfort of a life partner.

Common Causes of Wrongful Death

A wrongful death claim can arise from any situation where a person’s death is due to the negligent or intentional acts of another party. Though the facts of each case are unique, several common circumstances frequently lead to these lawsuits. 

Motor Vehicle Accidents

Fatal car crashes, truck accidents, and motorcycle collisions are among the most frequent sources of wrongful death claims. These claims often involve drivers who were distracted, intoxicated, fatigued, or driving at excessive speeds, thereby breaching their fundamental duty of care to others on the road. When the deceased was hit by a commercial vehicle, the legal action may also involve the trucking company if it failed to maintain the vehicle or pressured the driver to violate safety regulations.

Medical Negligence

When a patient passes away due to an error made by a doctor, nurse, hospital, or other healthcare provider, a wrongful death claim based on medical negligence may be appropriate. This occurs when the provider fails to provide care that meets the accepted standard of care within the medical community. Examples include misdiagnosis or delayed diagnosis of a serious condition, surgical errors, or medication errors. These cases often require detailed investigation and the testimony of knowledgeable medical professionals to establish the breach of duty and causation.

Workplace Incidents

Workplace fatalities, particularly in high-risk industries like construction, mining, and manufacturing, can lead to wrongful death actions. While workers’ compensation may provide some benefits, a third-party claim may be possible if the death was caused by the negligence of a party other than the employer (e.g., a subcontractor, a manufacturer of faulty equipment, or the owner of the job site). These cases focus on failures to provide a safe working environment or adhere to federal and state safety standards.

Premises Liability and Dangerous Conditions

Property owners in West Virginia have a duty to maintain their premises in a reasonably safe condition for visitors. If a death occurs due to an unreasonably dangerous condition—such as a structural collapse, a preventable fire, or a violent crime that occurred due to inadequate security—the owner may be held accountable. These types of claims require proof that the property owner knew or should have known about the dangerous condition and failed to take reasonable steps to prevent harm.

The Legal Process of Wrongful Death Claims In West Virginia

Pursuing a wrongful death claim in West Virginia involves a series of carefully executed steps that can span many months, or even years, depending on the complexity of the case.

1. Investigation and Preparation

The process begins with a comprehensive investigation of the incident. This phase involves gathering critical evidence, such as police reports, medical records, employment records, witness statements, and expert opinions (e.g., accident reconstructionists or forensic pathologists). During this time, the Personal Representative is formally appointed by the court.

2. Filing the Lawsuit

Once sufficient evidence is compiled, a formal complaint (petition) is filed with the appropriate West Virginia court. This document outlines the facts of the case, the defendant’s alleged negligence, and the specific damages being sought.

3. Discovery Phase

Discovery is the formal exchange of information between the parties. It involves:

• Interrogatories: Written questions sent by one party to the other.
• Requests for Production of Documents: Demands for relevant records, reports, and communications.
• Depositions: Out-of-court sworn testimony taken from witnesses and involved parties. This phase is critical for establishing the facts and assessing the strengths and weaknesses of both sides of the case.

4. Mediation and Settlement Negotiations

Before a case reaches trial, the parties often engage in mediation, a formal process where a neutral third party (the mediator) attempts to facilitate a settlement agreement. Most civil cases, including wrongful death claims, are resolved through negotiation and settlement rather than a full trial. A settlement allows the family to receive compensation sooner and without the risk and emotional toll of a jury trial.

5. Trial

If a fair settlement cannot be reached, the case proceeds to trial. During the trial, both sides present their evidence, examine witnesses, and make legal arguments to a judge and jury. The jury ultimately decides whether the defendant is liable and, if so, determines the amount of damages to be awarded.

The Value of Dedicated Legal Counsel

Navigating the complexities of West Virginia wrongful death statutes, proving negligence, and accurately calculating both current and future damages requires strong legal guidance. The successful prosecution of a wrongful death claim depends heavily on a deep and current understanding of state case law, court procedures, and the specific rules governing damage calculations.

Working with legal counsel who has a concentrated focus on wrongful death litigation means partnering with a team capable of handling detailed investigations. They possess the necessary resources to secure testimony from economists, life care planners, and medical consultants. A dedicated legal partner can manage the intensive discovery process and present the case effectively to insurance companies, defense counsel, and, if necessary, a jury. This focused commitment allows the grieving family to concentrate on their emotional well-being while having confidence that the legal aspects of their claim are being pursued with diligence and accuracy.

 Free Initial Consultation with a West Virginia Fatal Accident Attorney

If you have lost a loved one because of someone else’s negligence or careless actions, you should consult with an experienced attorney to discuss your legal rights and options. At Bailey, Javins, and Carter, L.C., we know what it takes to successfully pursue full and fair compensation in a wrongful death claim, and we are ready to go to help you with your claim.

Call our office today at (800) 497-0234 or (800) 296-6979 to schedule a free initial consultation with our personal injury lawyers in Charleston, Logan or Summersville.

We work on a contingent fee basis. We do not get paid unless you do.