Damages for Wrongful Death

Damages in wrongful death cases are intended to compensate for losses resulting from the death of a family member. Some losses are measurable — a widow in a wrongful death suit, for example, could seek to recover the financial support that she would have received had her spouse lived. Other damages are more general in nature. Types of recoverable damages include:

  • Direct Expenses: medical bills and funeral cost Va. Code § 8.01-52(3), (4).
  • Loss of Benefits: what the person could have received in pension/retirement benefits had they lived. Va. Code § 8.01-52(2).
  • Loss of Future Earnings: what the person who died would have earned in salary if he or she had lived. Va. Code § 8.01-52(2).
  • Loss of Companionship: what the person who died would have emotionally provided to a relationship, and the mental pain and suffering resulting from the decedent's death. Va. Code § 8.01-52(1).
  • Punitive Damages: what amount the defendant should be punished for his or her action resulting in the victim's death. Va. Code § 8.01-52(5).

Virginia law provides that you may recover damages to the extent a jury finds it fair and just in relation to the injury that resulted from the decedent's death. Va. Code § 8.01-52. If you are seeking punitive damages, however, you must show willful or wanton conduct, or such recklessness as evinces a conscious disregard for the safety of others. Va. Code § 8.01-52(5).

Amount of Damages

Calculating damages is a complex process involving multiple factors. Some factors include (1) how dependent the plaintiff was on the decedent; (2) the nature of the relationship with the decedent; (3) the anticipated lifespan of the decedent, (4) the anticipated earnings and other benefits of the decedent, and (5) the presence of any comparative fault. Often, determining the appropriate amount of damages for a particular element can be difficult. For example, when addressing damages for loss of companionship, a jury must attempt to put a price tag on the emotional loss you suffered from the decedent death.

An important element in wrongful death damage calculations is in estimating expected or future income losses. Future losses are the amount of earnings and benefits the decedent would have earned if he or she lived. Therefore, it is common to take the victim's earnings at the time of his or her death and calculate the remaining years until retirement (or expected death) to determine future loss of earnings.

Example: Suppose a spouse, 25 years of age, was earning $20,000 a year at the time of his death. Since he was not expected to retire or die for another 40 years, his yearly earnings at the time of his death would be multiplied by the number of years he was expected to work before retirement or expected death ($20,000 X 40 years). In this instance, his future loss is $800,000.

The example above is a simple explanation of how future loss calculations are made. Most of the time, however, the calculations can get very complicated. In most cases, a life expectancy table is used to estimate the number of years the decedent would have lived had they survived. So instead of just using retirement age as a standard for life expectancy, a life expectancy table may consider other factors that may increase or decrease the number of years the decedent would have been expected to live.

Present Value

When using a life expectancy table to calculate future losses, courts will often reduce the total future loss to a present dollar value. Because most wrongful death damage awards are paid in a lump sum, a beneficiary essentially receives the total amount of earnings and benefits the decedent would have made over the course of his/her life, reduced to a single amount, which is discounted to present dollars.

Example: A spouse works in a department store earning $20,000 a year. Assuming he works there for the next 40 years, he will make a total of $800,000 by the 40th year. The spouse suddenly dies as a result of a wrongful death. The surviving spouse would recover a lump sum payment designed to compensate her for the $800,000 loss, discounted to present dollars.

How is present value calculated?

In order to calculate present value, the future loss is first calculated using the life expectancy table. Once the future loss amount is calculated, it is then adjusted discounted using a mathematical table. The mathematical table estimates today's value of one dollar in the future based on the number of years the decedent was expected to live and an annual interest rate. After that is determined, the estimate from the table is multiplied by the decedent's yearly salary. The purpose for using present value is that a successful plaintiff will receive a sum that if invested at a reasonable interest rate, should equal the value of the future loss amount and cover expenses that may eventually arise if it is conservatively invested.

Distribution of Damages

In wrongful death suits, more than one family member may be a beneficiary to an award amount. So how are damages distributed? Under Virginia law, the amount recovered is distributed according to statutory inheritance guidelines, but either the jury or the court must determine the amounts if no will exists. Va. Code § 8.01-53(A)(C). Under the statute, damages are distributed to the surviving spouse, children of the deceased and children of any deceased child of the deceased or if there are none, then to the parents, brothers and sisters of the deceased, and to any other relative who is primarily dependent on the decedent for support or services and is also a member of the same household as the decedent. If the decedent has left both surviving spouse and parent or parents, but no child or grandchild, the award shall be distributed to the surviving spouse and such parent or parents. Va. Code § 8.01-53(A)(C).

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