Charleston Wrongful Death Attorneys

Offering Free Case Consultations

There is no stronger pain than losing a loved one. When that loss is a result of the negligence of another party, understanding and coping with this loss can be harder. The law has made provisions to hold others accountable for someone’s untimely passing through a wrongful death lawsuit. Should you choose to move forward with this legal option, the Charleston wrongful death lawyers at Pence Law Firm PLLC can fight for your family’s future.

We understand that pursuing a legal action during a time of immense grief can seem overwhelming. Our primary goal is to take on the entire legal burden, allowing your family the necessary time and space to mourn. We offer a free, detailed case consultation to review the circumstances of your loss and explain how West Virginia law applies to your specific situation, all without any obligation. This initial meeting is confidential and designed to give you clarity and direction during a difficult period.

For more information, call (304) 343-2222. Our attorneys are happy to discuss our client’s cases during a complimentary case consultation.

The Nature of a Wrongful Death Claim in West Virginia 

A wrongful death claim in West Virginia is a civil action that seeks monetary recovery when a person’s death is caused by the wrongful act, neglect, or default of another party. Essentially, this lawsuit can be brought when the deceased person could have brought a personal injury claim had they survived the accident or incident. This type of legal action is distinct from any potential criminal charges related to the death; it is focused solely on compensating the surviving family for their extensive losses.

The legal standard in these cases requires demonstrating that the responsible party failed to exercise reasonable care, and that this failure directly resulted in the fatality. Establishing this chain of events requires a comprehensive and analytical approach to the evidence. The circumstances leading to a claim can vary widely, including fatal car accidents, medical malpractice, workplace incidents, or deaths resulting from dangerous property conditions.

Understanding Who Can File a Claim

The ability to file a wrongful death claim is governed by strict state statutes, and not all family members are eligible to initiate the proceedings. In West Virginia, the claim must be filed by the deceased person’s personal representative. This representative is typically nominated in the deceased’s will or appointed by the court. While the personal representative is the legal entity that pursues the case, the financial recovery is distributed to the surviving beneficiaries.

These beneficiaries include the surviving spouse, children, stepchildren, adopted children, parents, and siblings. Additionally, any family member who was financially dependent on the deceased, even if they fall outside the immediate family categories, may also be considered an affected party eligible for compensation. The law prioritizes these relationships to ensure that those most directly harmed by the loss are protected. Our firm handles the necessary court appointments and legal filings to ensure the proper parties are designated to move the case forward.

The Strict Time Limit for Legal Action

A crucial procedural element in wrongful death cases is the statute of limitations. A wrongful death claim can be filed by the eligible surviving family members within two years of the date of death. This two-year deadline is a rigid requirement under West Virginia law. If a claim is not officially filed with the court before this period expires, the family permanently loses the legal right to seek compensation, regardless of the merits of the case.

The two-year window often closes faster than families realize, especially when they are dealing with the initial shock and grief. We strongly recommend that families seek counsel as soon as possible after the loss. Prompt action allows our firm to begin the investigation while evidence is still fresh, reliable, and available. Delaying the start of the investigation can mean losing access to critical items like physical evidence at an accident scene, time-sensitive electronic data, and the clear memories of key witnesses. A rapid and comprehensive start is vital for building a strong, successful case.

Damages That Can Be Recovered in a Wrongful Death Case in West Virginia

The unexpected loss of a loved one due to the negligence, carelessness, or intentional act of another party is an unimaginable tragedy. In West Virginia, a successful wrongful death claim provides the opportunity for affected parties—statutory beneficiaries, often represented by the decedent’s estate—to seek financial compensation for the numerous and devastating losses they have suffered due to their loved one’s untimely passing.

This legal avenue is designed to mitigate the harsh financial consequences of the death while acknowledging the profound emotional void left behind. The recoveries awarded are intended to cover both the quantifiable financial losses and the unquantifiable emotional devastation experienced by the family.

Calculating these recoveries is a detailed and often rigorous process. It involves gathering extensive documentation, engaging in comprehensive discovery, and frequently consulting with financial, medical, and actuarial professionals to establish a reliable and justifiable monetary value for the loss.

This process is not merely about assigning a number. It is about providing the surviving family with the financial stability the deceased would have ensured and offering a measure of justice by compelling the negligent party to acknowledge the full scope of the harm they caused. A committed legal practice, familiar with the nuances of West Virginia state law, is essential to navigating this complex legal landscape and ensuring that all eligible categories of damages are meticulously documented and authoritatively presented.

Damages that can be recovered fall broadly into two categories: economic (quantifiable) and non-economic (intangible).

Categories of Recoverable Damages:

• Compensation for lost wages and benefits
• Medical expenses incurred prior to death
• Funeral and burial expenses
• Compensation for property loss
• Loss of companionship, comfort, and society
• Loss of parental, spousal, or filial guidance
• Sorrow, grief, and emotional suffering

Detailed Compensation for Financial Losses (Economic Damages)

The economic components of a wrongful death award aim to replace the financial resources and tangible support that the deceased person would have provided to their family had they lived a full, natural lifespan. This category is often highly complex, particularly when dealing with younger decedents or those with long careers ahead, and requires rigorous calculations to establish a reasonable projection of future losses.

Compensation for Lost Wages and Benefits: The Largest Economic Component

This element is typically the largest quantifiable component of a claim. It includes not only the gross wages, salaries, and commissions the person was earning at the time of their death, but also the projected income they would have earned throughout their expected career span, often extending to normal retirement age.

Calculating this loss requires a multifaceted analysis across several key areas:

1. Earnings History: Reviewing years of tax returns, pay stubs, and employment records to establish a clear and documented baseline for earnings.
2. Career Projection: Factoring in probable promotions, scheduled raises, cost-of-living adjustments, and the typical trajectory of their profession. For an individual early in their career, this projection might involve reviewing industry standards and potential for advancement.
3. Loss of Benefits: This includes the monetary value of lost employer-provided benefits such as retirement contributions (e.g., 401k matches), health insurance premiums, life insurance coverage, and paid time off. These are tangible financial losses that the family must now absorb.
4. Adjustments for Personal Consumption: West Virginia law requires a reduction in the total lost income calculation to account for the portion of the deceased person’s income that they would have spent on themselves (e.g., personal food, clothing, and entertainment). This deduction ensures the recovery accurately reflects the net financial support the family lost.

Because these figures represent decades of future financial support, a legal representative often works alongside forensic economists to create a reliable, authoritative figure for this lifetime loss. 

The economists apply recognized financial and actuarial standards, ensuring the valuation is comprehensive, reflects sound methodology, and will withstand legal scrutiny and defense challenges. This detailed financial analysis is crucial for all decedents, including those who were self-employed, had irregular income, or were very young.

Special Considerations for Homemakers and Children

• Homemakers: When the deceased was primarily responsible for managing the household and providing childcare without formal wages, the lost wages claim shifts to the cost of replacing the value of their domestic services. This includes the cost of hiring a housekeeper, childcare provider, cook, and general household manager for the remainder of their expected life.
• Children/Students: For very young victims, calculating future earnings is exceptionally challenging. Claims must rely on demographic data, often projecting potential future income based on parental income, education level, and statistical averages for persons with similar backgrounds.

Medical Expenses Incurred

Any costs incurred for the immediate, intermediate, and long-term care and treatment of the deceased person following the injury that ultimately caused their death are recoverable.

This typically includes ambulance and air transport services, emergency room treatment, trauma care, hospitalization, surgeries, physician and consulting practitioner fees, and the cost of life support, testing, medication, and palliative care up until the date of death.

Recovering these expenses helps settle the debts that may have accrued during the final challenging days or weeks of the loved one’s life, alleviating a massive financial pressure on the surviving family. Legal counsel must compile and verify all billing statements, hospital records, and insurance explanations of benefits to ensure the full amount of reasonable and necessary medical costs is sought.

Funeral and Burial Expenses

The immediate and unavoidable costs associated with the burial, cremation, or other final arrangements are included in the recoverable damages. This lessens the immediate financial burden placed on the surviving family during their time of grief. Recoverable costs typically cover:

• The cost of a casket or urn.
• Fees for funeral home services, including preparation of the body.
• The cost of the burial plot or cremation services.
• The price of a headstone or grave marker.
• Transportation costs for the body.

Furthermore, this category also includes any reasonable administrative costs related to the administration of the deceased person’s estate that resulted directly from the necessary legal action, such as filing fees or certain probate expenses required to initiate the wrongful death lawsuit. A thorough legal practice ensures all receipts and relevant documentation are included to support the full claim.

Compensation for Property Loss

While often secondary to the life loss itself, if the wrongful death incident also involved the destruction or damage of personal property (such as a vehicle in a fatal crash, clothing, or other personal effects), the fair market value of the destroyed property or the repair costs of the damaged property can be included in the claim for recovery. Documentation here involves repair estimates, appraisals, or proof of purchase for the items destroyed.

Recognizing the Gravity of Non-Economic Loss (Intangible Damages)

While financial calculations address tangible losses, the law in West Virginia also recognizes the profound, intangible loss felt by surviving family members. These non-economic damages are often the largest component of a wrongful death recovery, reflecting the devastation that no amount of money can truly fix—it merely serves as a legal acknowledgment of the immense, non-monetary injury suffered.

Loss of Companionship, Comfort, and Society

This damage attempts to provide compensation for the loss of the intangible benefits received from the deceased that made up the fabric of the relationship.

This is a measure of the lost relationship itself and the void created in the family unit, acknowledging that relationships provide irreplaceable non-material value.

For a Surviving Spouse: The loss of companionship includes the loss of love, affection, comfort, consortium (including sexual relations), society, emotional support, and the mutual assistance inherent in a marital relationship. The value of this loss is presented through testimony from the surviving spouse, detailing the depth and nature of the marriage, the shared activities, and the sudden, irreplaceable void created by the death.

For Surviving Children: The loss of a parent includes the loss of parental guidance, nurturing, moral training, advice, counsel, companionship, and participation in the child’s education and life activities. When a child loses a parent, or a parent loses a child, the measure of damages focuses on the loss of that unique filial bond. For minor children, the loss of guidance is particularly critical, covering all the assistance a parent provides in shaping a young life. For adult children, the claim focuses more on the loss of companionship, counsel, and society.

Presenting these damages requires a legal representative to gather persuasive evidence beyond mere financial statements. This often involves collecting and preparing testimony from family members, friends, and community members who can attest to the quality, depth, and significance of the relationship that has been tragically severed.

Sorrow, Grief, and Emotional Pain

The term Sorrow in the context of West Virginia wrongful death law encompasses the extreme mental anguish, emotional suffering, and debilitating grief directly experienced by the eligible family members due to the death. While it is inherently impossible to assign a true monetary value to a family’s sorrow, the law provides a pathway for a formal, legal acknowledgment of this extreme emotional pain and its devastating impact on the survivors’ lives.

Under West Virginia Code $\S 55-7-6$, the jury is authorized to award damages for non-economic losses sustained by the distributees (the eligible family members), which include sorrow, mental anguish, and solace, as well as the loss of society, companionship, comfort, guidance, kindly offices, and advice of the decedent.

The presentation of the claim for sorrow and mental anguish is highly sensitive. It requires the family’s legal counsel to communicate the severity and depth of the emotional distress fully and clearly, whether during settlement negotiations or through compelling testimony during a trial. This presentation must be handled with dignity and respect, focusing on the genuine, life-altering nature of the grief and suffering endured by the survivors.

Aggressive Advocacy and the West Virginia Legal Framework

A crucial element of navigating a wrongful death case in West Virginia involves understanding and addressing the state’s comparative fault rule. West Virginia operates under a system known as modified comparative negligence, a rule that must be addressed with precision and rigorous analysis during the initial investigation and throughout the life of the claim.

The Rule of Modified Comparative Negligence

This rule dictates that if the deceased person is found to be at all responsible for the circumstances that resulted in their death (up to $50\%$ fault), then their potential financial recovery is reduced by that percentage.

• Example 1 (Partial Recovery): If the total economic and non-economic damages are assessed at one million dollars $(\$1,000,000)$ but the deceased is determined to be $10\%$ at fault for the instance that resulted in their death (perhaps for a minor traffic violation), the recovery awarded to the estate would be reduced by that amount, resulting in a recovery of $\$900,000$.
• Example 2 (Barred Recovery): The true complexity and danger for the family’s claim arise when the deceased is found to be $50\%$ or more at fault. Under West Virginia’s modified comparative fault law, if the deceased person’s share of fault is determined to be equal to or greater than that of the defendant (i.e., $50\%$ or more), the family is completely barred from any financial recovery.

Defense firms representing the negligent party will often aggressively pursue and attempt to establish any potential fault, however minor, on the part of the deceased person. This provides a clear pathway to significantly reduce or entirely eliminate the defendant’s liability, making the comparative fault defense a central part of opposing legal strategies.

The Role of Counsel in Minimizing Comparative Fault

Therefore, the role of the family’s legal counsel is paramount. They must undertake a thorough, diligent investigation—including accident reconstruction, review of all police and medical reports, and forensic analysis—to refute or minimize any claims of the deceased’s fault.

This detailed preparation includes:

• Scene Investigation: Immediately securing and documenting the scene to gather evidence before it is lost or corrupted.
• Witness Interviews: Locating and taking detailed, sworn statements from every possible witness.
• Data Analysis: Analyzing data from vehicle event data recorders (EDRs, or “black boxes”) or other digital sources to establish a clear timeline of events and assign accurate liability.

Through this rigorous preparation, a legal practice can authoritatively present the facts, challenging any defense assertions of fault and positioning the claim to maximize the family’s potential recovery under the stringent requirements of West Virginia law.

The Critical Role of Comprehensive Legal Representation

Navigating a wrongful death claim is emotionally overwhelming and legally demanding for surviving family members. The process involves far more than just filling out forms; it requires a deep and practical understanding of tort law, rules of evidence, financial economics, and trial procedure.

A legal representative committed to serving families in West Virginia must undertake several crucial steps to ensure the full and fair recovery of damages:

• Meticulous Documentation: From gathering decades of financial records to compiling detailed medical billing statements and organizing compelling testimonial evidence of lost companionship, the firm must meticulously build an unassailable evidentiary record.
• Authoritative Calculation: Employing forensic accountants and economists to establish the lost economic value ensures that the claim for lost income and benefits is scientifically grounded and mathematically sound. This is essential for claims involving young or high-earning decedents.
• Negotiation Prowess: Most wrongful death claims are resolved through negotiation. The legal representative must leverage the detailed preparation and authoritative evidence to compel insurance carriers and defense counsel to offer a settlement that fully reflects the calculated economic losses and acknowledges the severity of the non-economic suffering.
• Trial Readiness: While settlement is the preferred outcome, a successful firm must prepare every case as if it will go to trial. This preparation, including developing compelling visual aids and organizing powerful testimony from family members, often strengthens the negotiating position and demonstrates the practice’s commitment to achieving justice for the surviving family, regardless of how far the case needs to proceed.

Ultimately, a wrongful death claim provides the only path for surviving families to secure their financial future and gain a formal recognition of the irreplaceable loss they have endured. Securing representation that possesses a profound understanding of West Virginia statutes and case law, coupled with a track record of meticulous preparation and diligent advocacy, is the foundation for successfully recovering the comprehensive damages necessary to honor the memory of the deceased and provide for those they left behind. 

Aggressive Advocacy for the Families of Victims in West Virginia

An additional consideration in a wrongful death case is the comparative fault rule in West Virginia. This state operates under a system known as modified comparative negligence, which must be addressed with precision and care during the investigation phase.

During the investigation, if the deceased is found to be at all responsible for the circumstances that resulted in their death (up to 50% fault), then their potential recovery is reduced by that percentage. For example, if an estate is eligible to recover one million dollars but the deceased is found to be 10% at fault for the instance that resulted in their death, the estate can recover $900,000. The complexity arises when the deceased is found to be 51% or more at fault. Under West Virginia’s modified comparative fault law, if the deceased person’s share of fault is determined to be equal to or greater than that of the defendant (i.e., 50%ormore), the family is completely barred from any financial recovery.

The Critical Need for Focused Legal Attention

That is why it is essential to retain a personal injury law firm that maintains a strong command of wrongful death law. Our prepared attorneys diligently advocate for families, examining the situation from all possible angles to minimize any potential finding of fault against the deceased and maximize the overall damages sought. Defendants and their insurance companies will invariably try to assign partial fault to the victim in an attempt to reduce or eliminate the payout. A thorough legal team must be ready to challenge these assertions with compelling evidence and legal arguments.

Our focused practice involves anticipating these defense strategies. We analyze police reports, conduct interviews, and consult with accident reconstructionists or medical reviewers to present a complete and factual picture of how the defendant’s negligence was the sole or primary cause of the tragedy. This detailed approach is indispensable for protecting your family’s right to full recovery under the law.

Establishing the Defendant’s Negligence

A successful wrongful death claim rests entirely on proving that the defendant was negligent. This legal concept is broken down into four core elements that must be demonstrated with clear evidence: duty, breach, causation, and damages.

First, Duty: The defendant must have owed a legal duty of care to the deceased. This is often straightforward; for instance, all drivers have a duty to operate their vehicles safely, and all doctors have a duty to provide care that meets professional standards.

Second, Breach: It must be shown that the defendant violated or breached that duty of care. This is the act of negligence—the failure to act as a reasonable person would under the same circumstances. Running a red light or failing to diagnose a major illness represent breaches of duty.

Third, Causation: The breach of duty must be the direct and proximate cause of the death. This element is vital, particularly in complex cases like medical malpractice, where it must be clearly demonstrated that the doctor’s failure, and not another pre-existing condition, was the definitive cause of the patient’s death.

Fourth, Damages: Finally, the family must have suffered actual, measurable losses (the economic and non-economic damages discussed previously) as a result of the death. By meticulously building a case that addresses each of these four pillars, our firm creates a compelling and robust foundation for your claim.

The Investigative Advantage

Effective representation in a wrongful death case is built on a foundation of detailed and immediate investigation. The depth of our preparation allows us to approach negotiations or trial with confidence. Our process involves several key steps that go far beyond reviewing readily available documents.

We work quickly to secure all relevant physical evidence before it is lost or destroyed. This includes obtaining photographs of the scene, securing vehicle black box data, analyzing security footage, and interviewing immediate eyewitnesses while their memories are fresh. For technical cases, such as those involving product liability or industrial accidents, we call upon engineering or medical professionals to provide detailed, authoritative analysis. We translate this technical evidence into clear, understandable facts that support your family’s position.

Commitment to Your Family’s Future

While no amount of money will compensate for the loss of a loved one, achieving a maximum financial recovery can reduce the stress and financial burden that can arise as a result. The funds recovered are essential for providing financial security, replacing lost income, and ensuring future stability for the surviving spouse and children. They also serve as a form of accountability, ensuring that the responsible party is held liable for the full extent of the harm they caused.

At Pence Law Firm PLLC, our commitment to advocacy means we dedicate all our resources to achieving justice for your family. We approach every case with diligence, ensuring that every facet of the loss—from the detailed calculation of future wages to the profound non-economic toll—is meticulously documented and presented. We understand the gravity of the work we undertake and are prepared to stand by your side through every step of this legal journey. We are here to bring order and resolve to a situation marked by unimaginable loss.

Aggressive Advocacy for the Families of Victims

An additional consideration in a wrongful death case is the comparative fault rule in West Virginia. During the investigation, if the deceased is found to be at all responsible for the circumstances that resulted in their death (up to 50% fault), then their estate is unable to recover damages more than the percentage of fault. For example, if an estate is eligible to recover one million dollars but the deceased is found to be 10% at fault for the instance that resulted in their death, the estate can recover $900,000.

That is why is it essential to retain a personal injury law firm that understands the ins and outs of wrongful death law. Our seasoned attorneys aggressively advocate for families, examining the situation from all possible angles to maximize damages. While no amount of money will compensate for the loss of a loved one, it can reduce the stress and financial burden that can arise as a result.