After a Fatal Crash, Who Can File a Virginia Wrongful Death Claim?

A fatal car accident in Virginia leaves a family with grief and many hard questions at once. This page answers the ones Virginia families ask most about a wrongful death claim after a crash. It covers who may bring the claim, how long the family has, what damages the law lists, when punitive damages may apply, and how fault can affect the result. The rules described here are Virginia rules, and they apply in Winchester, Harrisonburg, the Front Royal area, Richmond, Henrico County and across the Shenandoah Valley.

Who can bring a wrongful death claim after a Virginia car accident?

A Virginia wrongful death action is filed by the decedent’s personal representative within two years of the death (Va. Code §§ 8.01-50(C), 8.01-244(B)), on behalf of the family members the statute protects. The basic rule is in Va. Code § 8.01-50.

In plain terms, the family does not file the case personally. Those family members then share in whatever is recovered. Settling who holds the personal representative role early avoids confusion at a hard time.

The statute also sets an order for who shares. Under Va. Code § 8.01-53, a surviving spouse and the children of the deceased come first. Parents, brothers and sisters can share in other situations, but only when the statute’s conditions are met. Under Va. Code § 8.01-53, where the decedent left children or grandchildren, a parent shares in the award with them and any surviving spouse only if the parent regularly received support or services from the decedent for necessaries, including living expenses, food, shelter, health care expenses, or in-home assistance or care, within the 12 months before death. A parent whose parental rights and responsibilities were terminated by a court of competent jurisdiction, or under a permanent entrustment agreement with a child welfare agency, is not eligible as a beneficiary under this section. If the decedent left a surviving spouse and parents but no child or grandchild, the award is shared between them. Under Va. Code § 8.01-53(A), where there is no surviving spouse, child, or child of a deceased child of the decedent, the parents, brothers and sisters share, along with 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. Where there are survivors under the spouse-and-children or spouse-and-parents clauses, that same household relative may also share.

How much time does a Virginia wrongful death lawsuit have to be filed?

The family’s wrongful death clock is tied to the date of death. An injured person’s own claim is tied to the date of injury. The two clocks are easy to confuse, so it helps to know which one applies.

Virginia generally allows two years from the date of injury to file a personal injury lawsuit (Va. Code § 8.01-243(A)); the clock runs from the date of injury, not the date of discovery, with narrow exceptions. The statute’s text is at Va. Code § 8.01-243.

Under Va. Code § 8.01-244, if a wrongful death action under § 8.01-50 is filed within the two-year period and for any cause abates or is dismissed without a decision on its merits, the time it was pending is not counted as any part of the two years, and a new action may be filed within what is left of that two-year period as if the earlier one had never been filed. A voluntary nonsuit under § 8.01-380 is not treated as an abatement or dismissal for this purpose, and subdivision E 3 of § 8.01-229 applies to a nonsuited action.

Some claims carry notice requirements that run out sooner. When a county, city or town may be responsible, a written statement of the claim may be due within six months after the claim accrued, under Va. Code § 15.2-209. Va. Code § 15.2-209 reads: “Failure to provide such statement shall not bar a claim against any county, city, or town, provided that the attorney, chief executive, or mayor of such locality, or any insurer or entity providing coverage or indemnification of the claim, had actual knowledge of the claim, which includes the nature of the claim and the time and place at which the injury is alleged to have occurred, within six months after such cause of action accrued.” Va. Code § 15.2-209 reads: “Every claim cognizable against any county, city, or town for negligence shall be forever barred unless the claimant or his agent, attorney, or representative has filed a written statement of the nature of the claim, which includes the time and place at which the injury is alleged to have occurred, within six months after such cause of action accrued.” Families may wish to speak with a lawyer promptly about the dates in their case.

What damages can a Virginia wrongful death claim include?

The law lists the types of damages a family can seek, and the jury or the court decides what award is fair and just.

Virginia wrongful death damages cover the family’s sorrow, mental anguish and loss of the decedent’s companionship, guidance and care; lost income and services; medical expenses from the injury; funeral expenses; and, for willful or wanton conduct, punitive damages (Va. Code § 8.01-52).

Each item tracks a real loss. The sorrow and companionship items cover the family’s own grief and the relationship they lost. The income and services items cover what the family relied on from the decedent. The items include the family’s losses, and punitive damages may be recovered for willful or wanton conduct, or such recklessness as evinces a conscious disregard for the safety of others; the jury or court may award damages as it may seem fair and just.

A separate point matters here. Under Va. Code § 8.01-25, a cause of action survives the death of the person it belongs to. Va. Code § 8.01-25 reads: “Provided that in such an action punitive damages shall not be awarded after the death of the party liable for the injury.” Under Va. Code § 8.01-25, a cause of action survives the death of the person in whose favor it existed; the statute does not address whether that claim is distinct from a wrongful death action. Va. Code § 8.01-25 reads: “Provided that in such an action punitive damages shall not be awarded after the death of the party liable for the injury.”

When may punitive damages be available in a Virginia car accident death?

Punitive damages are reserved for conduct that goes beyond ordinary carelessness. Punitive damages are available only where the conduct meets the standard set by statute, and the jury must find that it did.

Virginia allows punitive damages for actual malice, or for willful or wanton conduct or recklessness showing a conscious disregard for the safety of others, capped at $350,000 (Va. Code § 8.01-38.1).

Under Va. Code § 8.01-38.1, the jury is not told about that limit. A judge must reduce any higher award to the amount the statute allows.

The jury must find that the conduct met this standard before punitive damages can be awarded. Virginia allows punitive damages for actual malice, or for willful or wanton conduct or recklessness showing a conscious disregard for the safety of others, capped at $350,000 (Va. Code § 8.01-38.1).

What should a family know about crash reporting after a fatal Virginia crash?

Virginia requires a driver involved in a crash with injury or death to stop and report it to police immediately (Va. Code §§ 46.2-371, 46.2-894).

The duty has more detail. Under Va. Code § 46.2-894, a driver involved in an accident in which a person is killed or injured, or in which attended property is damaged, must immediately stop as close to the scene as possible without obstructing traffic. The driver must promptly report their name, address, driver’s license number and vehicle registration number to the State Police or local law-enforcement agency, or, if the injured person appears capable of understanding and retaining the information, to that person; or to the driver or other occupant of the vehicle collided with, or to the custodian of other damaged property, as Va. Code § 46.2-894 provides. The driver must also give reasonable help to anyone hurt.

A police report and early records can help any later review of the facts. Photos, witness names, vehicle details and medical records from the first days are the kinds of details that matter. Keeping copies in one place makes them easier to find later.

How can partial fault affect a Virginia wrongful death claim?

Virginia follows contributory negligence: if you are found even partly at fault, you may be barred from recovering, with limited exceptions. Talk to a lawyer about your facts.

As Williams v. Harrison explains, a negligent plaintiff may recover only if his negligence was a remote rather than a proximate cause of the accident; if the opportunity to avoid the accident is as available to the plaintiff as to the defendant, the plaintiff’s negligence is a proximate cause rather than a remote cause, and bars recovery.

A crash can also have more than one cause. As Ford Motor Co. v. Boomer puts it, “The proximate cause of an event is that act or omission which, in natural and continuous sequence, unbroken by an efficient intervening cause, produces that event, and without which that event would not have occurred.”

Whether any fault applies to a family’s case depends on the facts of the crash.