Charleston, WV Wrongful Death Lawyer | Charleston, WV Injury Attorney (2022)

Every year, thousands of entirely preventable accidents occur that harm or injure West Virginia residents. Some of these accidents end lives. To obtain justice for a tragic family member’s death that was preventable, you need to hold the at-fault party accountable. No one should get away with negligent actions that result in the premature death of another human being. At DiPiero Simmons McGinley & Bastress, PLLC, our Charleston wrongful death lawyers are passionate about pursuing high settlements for grieving families.

In the legal world, we refer to a wrongful death as any death that could have—and should have—been prevented. Most wrongful deaths occur during accidents that are directly or indirectly caused by negligence, reckless behaviors or actions, or carelessness. The U.S. civil justice system lets family members and loved ones of victims who died wrongfully take legal action against the guilty party. This is an area of law we call wrongful death law.

When you lose a loved one in a car accident, truck accident, or during any type of incident you didn’t expect, the recovery process can be devastating—especially if the accident could have been prevented. When a life is lost due to another’s actions or behaviors that were careless or reckless, obtaining justice is sometimes the best option and can aid the recovery process. We’re here to help you seek that justice. Let’s take a look at how West Virginia defines and handles wrongful death.

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What Tragedies Can Result in Wrongful Death?

Wrongful death claims can arise from any type of accidental death. The tragedies that result in unexpected fatalities are often the direct result of another party’s negligence. The examples below are some of the most common situations that end in a wrongful death.

Auto Accidents. Car accidents claim thousands of lives every year. Surviving victims may be faced with long recoveries and life-changing conditions. These wrecks typically result from speeding, distracted driving, reckless driving, auto defects, drunk driving, and inexperience. Truck accidents can also result in wrongful death when truck drivers neglect their vehicle’s maintenance or drive for extended periods of time without stopping. Motorcycles, while liberating, can be deadly because of their exposure and size.

Defective Products. Manufacturers, distributors, and sellers have a responsibility to their customers to ensure their products are safe and reliable. When they neglect that obligation, unsuspecting victims can suffer greatly. Examples of defective products include dangerous vehicles, childcare products and toys, pharmaceuticals, and toxic food products.

Medical Malpractice. When dealing with a medical issue, we have to put our trust in the hands of doctors, nurses, and other healthcare staff. Many of these individuals excel at their jobs; however, when mistakes are made the consequences can be deadly. Mistakes can happen if corners are cut and when communication errors are made. The most common medical errors include birth injuries, misdiagnosis, delayed treatment, surgical errors, and medication errors.

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Nursing Home Abuse. It can be a difficult decision to place a loved one in a nursing home; however, sometimes it is necessary. When a facility neglects their residents or intentionally abuses them physically or emotionally, the residents are at risk for sustaining serious injuries. A wrongful death could occur, especially if malnutrition or dehydration were abuse factors.

Workplace Accidents. Employers have a responsibility to keep their employees safe by remaining compliant with the regulations established by the Occupational Safety and Health Administration (OSHA). When they neglect to follow those laws, employees are put at risk. The construction and transportation industries see a high number of wrongful deaths every year.

Who Can File a Wrongful Death Claim in West Virginia?

A wrongful death claim is filed by a representative on behalf of the decedent. The filer is referred to as a “real party in interest.” The representative who files the lawsuit is typically an executor of the decedent’s estate. One of our Charleston wrongful death attorneys can help you determine who in your family can be deemed a representative, and we can aid that person with the claim.

In the state of West Virginia, according to Code section 55-7-6, individuals who may be able to file a wrongful death lawsuit include:

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  • Immediate family members. Parents, spouses, and children have the right to sue a responsible party for the wrongful death of a family member.
  • Life partners or financial dependents. If you lived with the decedent as a partner or were financially dependent on the decedent, you may have the legal right to sue depending on the circumstances with the immediate family.
  • Parents of a deceased fetus. This occurs in situations in which the accident caused a pregnant woman to miscarry her baby, when the fetus was otherwise healthy.
  • Persons who suffer financially after a death. If a loved one’s death causes you financial strain, you may be able to sue the at-fault party for damages that stemmed from the accident.

In West Virginia, a criminal case can be filed at the same time as a wrongful death claim because the first is filed by the state and the second is brought by the decedent’s estate. While a criminal case may be warranted, it’s the wrongful death claim that can assist survivors with monetary compensation and directly cover the losses.

How Does Comparative Fault Affect a Wrongful Death Claim?

To resolve cases in which an injured person was partly at fault for their accident, West Virginia utilizes the comparative fault rule. This rule also applies to wrongful death cases in the event the decedent may have been partially responsible for the circumstances that led to their death. If this is the case, the law states that the deceased’s estate cannot recover damages with a wrongful death claim if the victim was 50 percent or more at fault for what happened.

Let’s break down what this means with an example. If a person is crossing a street, gets struck by a vehicle, and passes away from the related injuries, the surviving family has a right to file a wrongful death claim. If it’s found the driver of the vehicle ran a red light, but the pedestrian was looking at a cell phone while crossing the street, a judge or jury can assign fault percentages.

Let’s say they decide the total damages is equal to $100,000, but the deceased is deemed liable for 30 percent of the accident. This means that the family and estate can recover $70,000 in damages.

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What Compensation Is Available to Recover from a Wrongful Death?

Recovering from the loss of a loved one can undoubtedly take an emotional, physical, and financial toll. While we understand the wrongful death lawsuit cannot bring your loved one back, the compensation can help with the piling expenses. Families may be eligible for compensation to cover the following categories after unexpectedly losing a loved one:

  • Medical Bills. Depending on the circumstances surrounding your loved one’s death, your family may be dealing with incurred medical expenses. If your loved one was treated for an extended period of time before their passing, it’s likely the cost of care was extremely high and burdensome. Compensation will help to cover these expenses.
  • Funeral Expenses. Funeral and burial expenses often cost thousands of dollars. Depending on the wishes of the deceased or the family, the costs can seem extreme. Compensation can be won to manage these bills.
  • Lost Earnings. In the event the decedent was a financial provider for your family, you may be struggling even more. The right attorney can ensure the family is awarded the amount of money the loved one would have been expected to earn in the future had their life not been cut short. This can include benefits and retirement.
  • Pain and Suffering. Families may be eligible for compensation for the grief, pain, and suffering they’ve experienced and are still experiencing as a result of their loss. This is especially applicable in the event of the loss of a spouse or parent.
  • Punitive Damages. In some instances, especially when a loved one’s death resulted from a drunk driver or a serious workplace regulation violation, families may be eligible for compensation that punishes the at-fault party in an attempt to prevent the same or similar actions from happening in the future.

What Factors Influence the Value of the Lawsuit?

There are a number of factors that could potentially influence the value of the lawsuit. Our Charleston lawyers are prepared to handle the complexities associated with these cases, so your family receives full and fair compensation. The following could potentially influence the determined value of the claim:

  • The facts of the accident that lead up to the death and whether the cause was a mistake or related to direct negligence
  • If the death is not disputed, the claim could be worth more
  • The amount of pain and suffering the deceased experienced preceding death
  • The number of potential beneficiaries
  • The age of the decedent
  • The identity of the party who caused the death – a mistaken individual may be viewed more sympathetically than a negligent workplace or employer
  • The level of insurance coverage – an underinsured or uninsured party may render damages unrecoverable
  • The insurance company – who will likely try to minimize the claim and avoid paying full compensation
  • The personal character or reputation of the decedent
  • The experience of your lawyer

Reach Out to Our Charleston Wrongful Death Lawyers

After losing a loved one, you may have trouble making ends meet or recovering after having to pay for your deceased family member’s final costs. These are the times when filing a West Virginia wrongful death lawsuit can do the most good. It’s important to remember there is a statute of limitations associated with wrongful death claims. In West Virginia, a claim may be filed up to two years after the untimely death. Our lawyers will work to ensure you do not miss this deadline.

At DiPiero Simmons McGinley & Bastress, PLLC, you won’t just work with one lawyer. We handle all our clients’ cases as a team. We believe that each of our West Virginia wrongful death lawyers has distinctive experiences that frame his or her skills and enhance our team’s collective ability. We can use our combined legal knowledge to best secure a high settlement or verdict in your case.

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Wrongful death cases are often incredibly complex; however, we will fight for you and your deceased loved one, to ensure the negligent party is held accountable for their actions. A wrongful death claim will not erase the tragedy that occurred, but it can offer peace of mind so your family can focus on healing.

We understand that you’re grieving from the loss of your loved one. Allow us to take care of your legal matters, and we’ll give you the time and compensation you need to recover. Call our Charleston firm today for a free case evaluation or to learn more about our services.


What is the burden of proof for wrongful death? ›

In wrongful death cases, we must prove the death of the plaintiff's relative was caused either by part or in whole by the carelessness, recklessness, or by the negligent actions of the defendant.

What is the highest wrongful death settlement? ›

Top 100 Wrongful Death Settlements in the United States in 2018
Attorneys:Alan M. Feldman, Daniel J. Mann, Edward S. Goldis of Feldman Shepherd Wohlgelernter Tanner Weinstock & Dodig LLP; Andrew R. Duffy, Robert J. Mongeluzzi, Benjamin J. Baer of Saltz Mongeluzzi Barrett & Bendesky PC
201 more rows

How long do you have to file a wrongful death lawsuit in West Virginia? ›

West Virginia law provides that a wrongful death lawsuit generally must be filed within two years from the date of death. Failing to file a wrongful death lawsuit within that time period may completely terminate your rights under any potential wrongful death claim.

What is the statute of limitations on medical malpractice in WV? ›

As noted above, the general statute of limitations for medical malpractice in West Virginia is 2 years from the date of the injury, or 2 years from the date the injury is discovered or should have been discovered.

What constitutes a wrongful death? ›

Elements of Wrongful Death Lawsuits

A person's death caused by another person's negligence or by another person's intent to cause the deceased individual harm. Monetary injuries, related to the death, for the surviving family members. Appointment of a personal representative for the estate of the decedent.

What is preponderance of evidence? ›

Preponderance of the evidence is one type of evidentiary standard used in a burden of proof analysis. Under the preponderance standard, the burden of proof is met when the party with the burden convinces the fact finder that there is a greater than 50% chance that the claim is true.

Are wrongful death settlements taxable? ›

The settlement amount you receive in a wrongful death claim remains untaxable, according to the Internal Revenue Service (IRS) in IRS Rule 1.104-1. The IRS makes the wrongful death settlement non-taxable because it classifies as part of a claim that resulted from personal injuries or physical illness.

How much compensation do you get for accidental death? ›

The Ministry of Road Transport and Highways has notified a new scheme for compensation of victims of Hit& Run motor accidents vide notification dated 25th February, 2022 to cater to enhanced compensation ( from Rs 12,500 to Rs 50,000 for grievous hurt and from Rs 25,000 to Rs 2,00,000 for death ) .

What is the average settlement for a wrongful death lawsuit in Illinois? ›

Settlements usually range from several hundred thousand to several million dollars on average, depending on the factors involved in each individual case. Some average Illinois wrongful death settlements include: A $2.9 million settlement in the wrongful death of a baby due to medical malpractice.

Who can sue for wrongful death in WV? ›

For this reason, the person's close family member, such as a spouse, child, parent, or sibling can file for a settlement. Code section 55-7-6 under West Virginia law states that the compensation received from a wrongful death settlement is paid to the surviving spouse.

Who can file a wrongful death suit in West Virginia? ›

Unlike some states that allow surviving family members to file a wrongful death lawsuit, West Virginia law requires the personal representative (sometimes called the "executor") of the deceased's estate to bring a wrongful death claim to court. (W.Va. Code § 55-7-6 (2021).)

How long do you have to file a civil suit in West Virginia? ›

In West Virginia, the defendant must file a written answer or make a personal appearance within 20 days of service to avoid default (30 days if service is made on defendant's attorney or agent).

How long is the statute of limitations in West Virginia? ›


The statute of limitations is four years under the West Virginia Consumer Credit and Protection Act (W. Va. Code § 46A-5-101).

Does WV have statute of limitations? ›

What Is the Statute of Limitations in WV? For most types of civil cases, the statute of limitations in West Virginia is two years. Most misdemeanor criminal charges must be filed within a year, while felonies have no statute of limitations.

What is the statute of limitations in West Virginia for personal injury? ›

In West Virginia, the statute of limitations to file a personal injury or wrongful death claim is two years. This means that, unless a legal exception applies, the wronged person cannot file a lawsuit seeking damages after the two-year time limit is up.

What are the two methods that states use to provide recovery for wrongful death? ›

While both handle the death of a person, wrongful death cases are settled in a civil court, while criminal courts handle homicide charges. The victim's surviving family members file wrongful death lawsuits to recover monetary damages while the state files criminal charges and seeks a prison sentence.

What is a survival action? ›

A survival action is the lawsuit that the deceased person would have been able to bring had he or she lived, while a wrongful death action is a claim for compensation for the harms that the family of the deceased has suffered.

Is wrongful death a tort explain? ›

The Deceased must have been able to claim against the defendant: Section 1(1) of the 1976 act provides that an action will succeed only if the wrongful act, default which caused death, is such that if the person had not died, would have been entitled to bring an action and claim damages from the defendant thereof.

What is considered clear and convincing evidence? ›

When a party has the burden of proving any claim or defense by clear and convincing evidence, it means that the party must present evidence that leaves you with a firm belief or conviction that it is highly probable that the factual contentions of the claim or defense are true.

What percentage is clear and convincing evidence? ›

Under the clear and convincing standard, the evidence must be substantially greater than a 50% likelihood of being true. In a criminal trial, clear and convincing is less strict than the “Beyond a Reasonable Doubt” standard, which requires that evidence be close to certain of being true.

What is quantum of evidence? ›

The quantum of evidence is the amount of evidence needed; the quality of proof is how reliable such evidence should be considered. Important rules that govern admissibility concern hearsay, authentication, relevance, privilege, witnesses, opinions, expert testimony, identification and rules of physical evidence.

Do I have to report settlement money to IRS? ›

The general rule of taxability for amounts received from settlement of lawsuits and other legal remedies is Internal Revenue Code (IRC) Section 61 that states all income is taxable from whatever source derived, unless exempted by another section of the code.

Can the IRS take my lawsuit settlement? ›

In some cases, the IRS can take a part of personal injury settlements if you have back taxes. Perhaps the IRS has a lien on your property already, and if so, you could find yourself losing part of your settlement in lieu of unpaid taxes. This can happen when you deposit settlement funds into your personal bank account.

Do I have to report personal injury settlement to IRS? ›

The compensation you receive for your physical pain and suffering arising from your physical injuries is not considered to be taxable and does not need to be reported to the IRS or the State of California.

How is injury case compensation calculated? ›

The maximum Monthly Wage Allowed for the calculation of compensation under the Act is Rs. 8000.
Compensation in Case of Death:
  1. 50% of the Monthly Wage x Relevant factor as per the age of the worker.
  2. Funeral expenses of Rs. 5000 are also payable.
  3. The minimum amount payable is Rs. 120,000.

Who is liable to pay compensation in case of death? ›

(MVA S 140)— (1) The owner / owners of the vehicle are jointly and severally, liable to pay compensation in respect of death or disablement, where such death or permanent disablement is resulted from an accident arising out of the use of a vehicle or vehicles.

Who is liable to pay compensation in case of death or permanent disablement? ›

(1) Where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or ...

How do I split my wrongful death settlement in Illinois? ›

Illinois Survival Act Claims
  1. A spouse but no children: The spouse inherits the entire estate.
  2. A spouse and children: The spouse receives 50 percent of the estate and the remaining 50 percent is divided equally among the children. ...
  3. Children but no spouse: The estate is divided equally among the children.
10 Sept 2015

What is the statute of limitations for wrongful death in Illinois? ›

The Illinois wrongful death statute of limitations is two years from the date of death. Exceptions may apply, however.

Are wrongful death settlements taxable in Illinois? ›

No. Proceeds from a wrongful death lawsuits are not taxable in Illinois. However, portions of other forms of compensation might be taxable so it is important to speak with an attorney to understand your tax consequences.

How long do Judgements last in WV? ›

How long does a judgment lien last in West Virginia? A judgment lien in West Virginia will remain attached to the debtor's property (even if the property changes hands) for ten years.

How much is Court cost in WV? ›

Fee Schedule
District Court FeesTotal Fee
Civil Filing Fee$402.00
Prisoner Filing FeeIFP Fee $350.00 Non IFP Fee - If not IFP +$52.00 Total $402.00
Writ of Habeas Corpus$5.00
Power of Attorney$46.00
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How many days do you have to answer a complaint in WV? ›

The plaintiff shall serve a reply to a counterclaim in the answer within 20 days after service of the answer or, if a reply is ordered by the court, within 20 days after service of the order, unless the order otherwise directs.

How long do you have to press charges in West Virginia? ›

In West Virginia, the general statute of limitations for misdemeanors is one year, while there is no limitation period for felonies. See below for statutes of limitations for some specific offenses.

Do misdemeanor warrants expire in WV? ›

No, arrest warrants generally do not expire. Once they have been issued, a law enforcement officer can execute them whenever he or she next encounters the subject of the warrant. This can happen right after the warrant is issued, or months or even years afterward. It usually happens at a traffic stop.

What are felonies in WV? ›

A felony is any crime that carries a penalty of imprisonment in the penitentiary for at least one year. This includes murder, manslaughter, theft crimes involving more than $1,000, third offense DUI, strangulation, and possession with intent to deliver a controlled substance.

How long does a misdemeanor warrant stay active in WV? ›

A Ramey warrant usually expires after 90 days from the date it was issued.

Is DUI a felony in WV? ›

First and second DUI charges in West Virginia are considered misdemeanors, but your third offense is a felony. Penalties for a third DUI include a minimum of two years in prison to as much as five years behind bars.

Who bears the burden of proof for negligence case? ›

The claimant must prove that, on the balance of probabilities, the defendant has been negligent or has breached their statutory duties. Proof on the balance of probabilities means proof that it is more likely than not.

What is the burden of proof in civil law cases? ›

Plaintiffs in civil cases typically have the burden of proving their allegations by a preponderance of the evidence. In criminal cases, the prosecution typically has the burden of proving its allegations beyond a reasonable doubt.

What is the burden of proof in tort law? ›

Civil case burden of proof

In tort law, you must prove your case by a preponderance of evidence. You must show there is over a 50% chance that what you claim is true.

Who has the burden of proof in medical negligence case? ›

When it comes to bringing a medical negligence claim and proof, the burden sits with you. So it's up to you to show that the person you sue made the medical error and was responsible for your injuries and financial losses.

What are the three burdens of proof? ›

These three burdens of proof are: the reasonable doubt standard, probable cause and reasonable suspicion. This post describes each burden and identifies when they are required during the criminal justice process.

What is proof of negligence? ›

In order to prove that an act was negligent, it is necessary to prove all the essentials namely duty, breach of duty, damages and actual and proximate cause. An important maxim regarding negligence i.e Res Ipsa Loquitur is used by the courts when a negligent act cannot be explained.

What is an example of burden of proof? ›

The burden of proof (“onus probandi” in Latin) is the obligation to provide sufficient supporting evidence for claims that you make. For example, if someone claims that ghosts exist, then the burden of proof means that they need to provide evidence that supports this.

Which of the following is the highest burden of proof? ›

The “beyond a reasonable doubt” standard is the highest standard of proof that may be imposed upon a party at trial, and it is usually the standard used in criminal cases.

What is clear and convincing evidence? ›

When a party has the burden of proving any claim or defense by clear and convincing evidence, it means that the party must present evidence that leaves you with a firm belief or conviction that it is highly probable that the factual contentions of the claim or defense are true.

What percentage is clear and convincing evidence? ›

Under the clear and convincing standard, the evidence must be substantially greater than a 50% likelihood of being true. In a criminal trial, clear and convincing is less strict than the “Beyond a Reasonable Doubt” standard, which requires that evidence be close to certain of being true.

What are the hardest cases to prosecute? ›

Rape and other serious sexual offences are devastating crimes that can have a lasting impact on their victims. They are among the most challenging crimes to prosecute, and every CPS lawyer working on rape prosecutions is a dedicated specialist, highly trained in the complexities of these cases.

What should be proven in tort? ›

Damages and Causation.

The onus is on the plaintiff to prove harm and that the defendant's breach of duty has caused the harm. Further, there ought not to have been an intervening event. The court will ask: would the person have suffered harm 'but for' the actions of the other person.

What are the two elements of preponderance of evidence? ›

A "preponderance of the evidence" and "beyond a reasonable doubt" are different standards, requiring different amounts of proof. The burden of proof is often said to consist of two distinct but related concepts: the burden of production, and the burden of persuasion.

What three tests are needed to prove negligence? ›

What is the three-part test?
  • The medical practitioner owed a duty of care to the patient, and;
  • That duty of care was breached, and;
  • The patient suffered harm as a result of the breach.
29 Apr 2020

On what grounds can you sue for medical negligence? ›

Some common medical malpractice and negligence claims include delayed diagnosis, misdiagnosis of cancer, surgical error, birth injuries to both the infant and mother, incorrect medication or treatment is given, referral errors, and hospital-acquired infections.

What can be classed as medical negligence? ›

Medical negligence is substandard care that's been provided by a medical professional to a patient, which has directly caused injury or caused an existing condition to get worse. There's a number of ways that medical negligence can happen such as misdiagnosis, incorrect treatment or surgical mistakes.


1. Wrongful Death Cases and Lawsuits: A West Virginia Attorney Explains
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2. Huntington Personal Injury Attorneys - Cyrus & Adkins - West Virginia Accident Lawyers
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4. Charleston, West Virginia Sudden Acceleration Attorneys - Law Firm of Bailey & Glasser LLP
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