In an earlier post on the subject, we looked at the question of what kinds of damages claims a successful plaintiff can recover in a West Virginia action for wrongful death. In this post, we will examine the topic of who can initiate such a lawsuit.
Although a wrongful death action is intended for the benefit of surviving family members of the deceased, and a damages award is to be distributed among the surviving spouse, children (including adopted children), parents and siblings, unlike in some other states West Virginia law does not contemplate that these beneficiaries will be the ones who will actually file the legal complaint. Instead, the wrongful death statute clearly states that it is the personal representative of the estate of the deceased person who is responsible for initiating the lawsuit. It may be possible for a surviving relative to file the lawsuit if he or she is named as the personal representative.
Another responsibility that the wrongful death statute places in the hands of the personal representative is the settlement of wrongful death claims short of trial. Such settlements are subject to court approval, but not to the approval of the surviving relatives.
The responsibility of the personal representative to either litigate or settle legal claims also extends to a survival action, which is a cousin of a cause of action for wrongful death.
This post is meant for information only, and should not be read as legal advice. Anyone having questions about how wrongful death lawsuits work in West Virginia — such as who can initiate them, what the elements of a cause of action are, who is entitled to receive a damages award and what such an award includes — can address those inquiries to a personal injury law firm that includes wrongful death in its areas of practice.