In Virginia, whenever the death of a person shall be caused by the wrongful act, neglect, or default of any person or corporation, or of any ship or vessel, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action, or to proceed in rem against such ship or vessel or in personam against the owners thereof or those having control of her, and to recover damages in respect thereof. In every such case, the person who, or corporation or ship or vessel which, would have been liable, if death had not ensued, shall be liable to an action for damages, or, if a ship or vessel, to a libel in rem, and her owners or those responsible for her acts or defaults or negligence to a libel in personam, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances, as amount in law to a felony[i].
Every action under this section shall be brought by and in the name of the personal representative of such deceased person within the time limits specified in § 8.01-244. If the deceased person was an infant who was in the custody of a parent pursuant to an order of court or written agreement with the other parent, administration shall be granted first to the parent having custody. However, the parent may waive his/her right to qualify in favor of any other person designated by him/her. If no such parent or his/her designee applies for administration within thirty days from the death of the infant, administration shall be granted as in other cases[ii]. No action shall be maintained by the personal representative of one who, after injury, has compromised for such injury and accepted satisfaction therefor previous to his/her death[iii].
The jury or the court, as the case may be, in any such action under § 8.01-50 may award such damages that are fair and just. The verdict or judgment of the court trying the case without a jury shall include, but may not be limited to, damages for the following:
- Sorrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent;
- Compensation for reasonably expected loss of income of the decedent and services, protection, care and assistance provided by the decedent;
- Expenses for the care, treatment and hospitalization of the decedent incident to the injury resulting in death;
- Reasonable funeral expenses; and
- Punitive damages may be recovered for willful or wanton conduct, or such recklessness as evinces a conscious disregard for the safety of others[iv].
Damages recoverable under 3, 4 and 5 above shall be specifically stated by the jury or the court, as the case may be. Damages recoverable under 3 and 4 above shall be apportioned among the creditors who rendered such services, as their respective interests may appear. Competent expert testimony shall be admissible in proving damages recoverable under 2 above. The court shall apportion the costs of the action as it shall deem proper[v].
The damages awarded pursuant to § 8.01-52 shall be distributed as specified under § 8.01-54 to:
- the surviving spouse;
- children of the deceased and children of any deceased child of the deceased or if there be none such, 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; or
- 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; or
- if there are survivors, the award shall be distributed to those beneficiaries 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; or
- if no survivors exist, the award shall be distributed in the course of descents as provided for in § 64.1-1[vi].
Provided, however, no parent, whose parental rights and responsibilities have been terminated by a court of competent jurisdiction or pursuant to a permanent entrustment agreement with a child welfare agency, shall be eligible as a beneficiary under this section. The class and beneficiaries thereof eligible to receive such distribution shall be fixed at the time the verdict is entered if the jury makes the specification or at the time the judgment is rendered if the court specifies the distribution[vii].
A beneficiary may renounce his/her interest in any claim brought pursuant to § 8.01-50 and in such event, the damages shall be distributed to the beneficiaries in the same class as the renouncing beneficiary or if there are none, to the beneficiaries in any subsequent class in the order of priority set forth in subsection A[viii].
The personal representative of the deceased may compromise any claim to damages arising under or by virtue of § 8.01-50, including claims under the provision of a liability insurance policy, before or after an action is brought, with the approval of the court in which the action was brought, or if an action has not been brought, with the consent of any circuit court. Such approval may be sought on petition to such court, by the personal representative, by any potential defendant, or by any interested insurance carrier. If a potential defendant or an insurance carrier petitions the court for approval, the personal representative shall be made a party to the proceeding. The petition shall state the compromise, its terms, and the reason therefor. The court shall require the convening of the parties in interest in person or by their authorized representative. However, it shall not be necessary to convene grandchildren whose living parents are made parties to the proceeding. The parties in interest shall be deemed to be convened if each such party endorses the order by which the court approves the compromise, or is given notice of the hearing and proposed compromise as provided in § 8.01-296, if a resident of the Commonwealth or as provided in § 8.01-320 if a nonresident, or is otherwise given reasonable notice of the hearing and proposed compromise as may be required by the court[ix].
If the court approves the compromise and the parties in interest do not agree upon the distribution to be made of what has been or may be received by the personal representative under such compromise, or if any of them are incapable of making a valid agreement, the court shall direct such distribution as a jury might direct under § 8.01-52 as to damages awarded by them. In other respects, what is received by the personal representative under the compromise shall be treated as if recovered by him/her in an action under § 8.01-52[x].
The right of action under § 8.01-50 shall not determine, nor the action, when brought, abate by the death, dissolution, or other termination of a defendant. When a person who has brought an action for personal injury dies pending the action, such action may be revived in the name of his/her personal representative. If death resulted from the injury for which the action was originally brought, a motion for judgment and other pleadings shall be amended so as to conform to an action under § 8.01-50 and the case shall proceed as if the action had been brought under such section. However, in such cases, there shall be but one recovery for the same injury[xi].
[i] Va. Code Ann. § 8.01-50
[iii] Va. Code Ann. § 8.01-51
[iv] Va. Code Ann. § 8.01-52
[vi] Va. Code Ann. § 8.01-53
[ix] Va. Code Ann. § 8.01-55
[xi] Va. Code Ann. § 8.01-56