The West Virginia wrongful death act, W.Va. Code, §55-7-5 to 8a, allows a cause of action “whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action to recover damages in respect thereof” [i].
However, no action shall be maintained by the personal representative of one who, not an infant, after injury, has compromised for such injury and accepted satisfaction therefor previous to his/her death. Any right of action which may hereafter accrue by reason of such injury done to the person of another shall survive the death of the wrongdoer, and may be enforced against the executor or administrator, either by reviving against such personal representative a suit which may have been brought against the wrongdoer himself/herself in his/her lifetime, or by bringing an original suit against his/her personal representative after his/her death, whether or not the death of the wrongdoer occurred before or after the death of the injured party[ii].
The Legislature has enlarged the damages recoverable under W.Va. Code, §55-7-6 to permit juries to award damages that the deceased might have recovered had s/he survived the injury and brought the action, in addition to the damages resulting from the wrongful death[iii]. Juries are required to consider awarding fair and just damages for all losses including, but not limited to, losses to both the decedent’s beneficiaries and to the decedent’s estate such as:
- lost income,
- funeral expenses,
- medical expenses, or
- any other damages related to the decedent’s fatal injury.
Accordingly, “juries have almost unfettered discretion in awarding damages for a death caused by the wrongful act, neglect or default of another.” Because of the expansive damages that juries can award as compensation for losses caused by a defendant’s wrongful act, neglect, or default under §55-7-6, the damages for a decedent’s pain and suffering are considered to be damages that accrue to the decedent’s estate and are recoverable under §55-7-6[iv]. However, to award damages for pain and suffering, there must be evidence of conscious pain and suffering of the decedent prior to death. Where death is instantaneous or where there is no evidence that the decedent consciously perceived pain and suffering, no damages for pain and suffering are allowed[v].
The personal representative of the deceased may compromise any claim to damages arising under section five of this article before or after action brought. Upon approval of the compromise, the court shall apportion and distribute such damages, or the compromise agreed upon, after making provisions for those expenditures, if any, specified in subdivision (2), subsection (c), section six of this article, in the same manner as in the cases tried without a jury[vi].
In any action to recover damages for personal injury or wrongful death, no specific dollar amount or figure relating to damages being sought may be included in the complaint. The complaint may include a statement reciting that the amount in controversy satisfies the minimum jurisdictional amount established for filing the action[vii].
[i] W. Va. Code § 55-7-5
[iii] W. Va. Code § 55-7-6
[vi] W. Va. Code § 55-7-7
[vii] W. Va. Code § 55-7-25