When is a Fatal Car Accident a Wrongful Death Case?

In 2022, 942 fatal car accidents led to the deaths of more than 1,000 people in Virginia. Losing a loved one is devastating under any circumstances, but the damage you experience can be even more heartbreaking when you learn that it was caused by someone else’s negligence. If another person’s negligence resulted in the death of a family member in Virginia or elsewhere, whether in a car accident, motorcycle accident, or truck accident, you could be entitled to pursue damages via a civil Virginia wrongful death lawsuit. At Shapiro, Washburn & Sharp, our Virginia Beach wrongful death lawyers provide compassionate and reliable assistance to families throughout the state. Backed by decades of combined legal experience, we have the knowledge and the resources to protect your rights and secure the compensation to which you are entitled.

Virginia Car Accident Statistics

According to the Virginia Department of Transportation, in 2022, the state’s fatality rate of 1.22 deaths for every hundred million vehicle miles traveled was the highest it has been since 2007.  

That means 2022 saw:

  • 335 motor vehicle accidents every day or roughly 14 an hour  
  • 1,005 deaths due to motor vehicle accidents
  • 59,404 injuries due to motor vehicle accidents

Also in 2022:

  • The total number of car accidents increased by 3.3%
  • Alcohol-related car accidents rose by 2.4%
  • Accidents related to speeding increased by 1%

When is a Death Considered Wrongful?

Pursuant to Virginia’s wrongful death laws, a wrongful death suit can be brought to collect financial compensation for a death that was caused by a negligent or wrongful act. The compensation awarded in a wrongful death case is intended to compensate the victim’s family for damages arising from the death of a loved one. Keep in mind that various forms of insurance like car insurance or homeowners insurance policies, provide coverage for negligent or careless acts but often do not provide insurance coverage against intentional acts, which takes several forms but usually means a person had criminal intent to cause intended harm.

What Are the Most Common Causes of Wrongful Deaths in Virginia?

One of the leading causes of wrongful deaths in Virginia is motor vehicle accidents, including car accidents, drunk driving accidents, motorcycle accidents, and commercial truck accidents. A Virginia Beach wrongful death attorney can review the facts of your accident and advise you on the best course of action for your specific situation.  

When Is a Fatal Car Accident a Wrongful Death Case?

In order for a fatal car accident to lead to a valid wrongful death case, the plaintiff will have to show that another party was negligent; the same requirement that must be met by any personal injury case.  

In legal parlance, negligence takes place when someone fails to act with the same level of care that a reasonable person would have under the same or similar circumstances. Behaviors such as speeding, drunk driving, aggressive driving, and even defective vehicle parts could fall under the umbrella of negligence. To prove that another party’s negligence caused a fatal car accident, a Virginia Beach wrongful death lawyer will need to establish the following four distinct but related elements.  


Generally speaking, people have a duty to behave in such a manner that prioritizes the safety of others. The first element of negligence that an attorney will have to prove is that the at-fault driver owed a duty of care to the deceased. Every driver has a duty to operate their vehicle in a reasonably safe manner, meaning they are required to obey traffic laws and regulations. This duty also extends to ensuring the roadworthiness of their vehicle. 


The next element necessary to show negligence is proving that the defendant breached the duty they owed to the deceased. In other words, you need to prove that the defendant’s actions were not the same as the actions that a reasonable driver would have taken under the same circumstances. In most instances, a breach of duty can be proven by showing that a driver broke the law. Unfortunately, there are situations when the breach is not immediately obvious. For example, a driver who was obeying the speed limit at the time of the accident does not appear to have breached their duty of care. If, however, your attorney points out that the streets were covered in ice and snow, then the breach becomes obvious because a reasonable driver would have decreased their speed due to the weather.  


Poor decisions or abysmal conduct are not enough to make a person liable for an injury or death. In order to be liable, their actions must have been the direct cause. As such, the third element required to establish negligence is causation. The defendant’s actions must have been the immediate cause of your loved one’s death. If a driver was distracted and drifted into oncoming traffic and your family member was killed in the resulting accident, then their conduct was the direct cause of the death.


The last element of negligence is actual damages. To prevail in a lawsuit arising from a fatal accident, the plaintiff has to show that they incurred physical, financial, or mental harm.

Virginia Wrongful Death Legislation

Virginia law states that a legal action brought on behalf of a victim’s estate involves two distinct components: a wrongful death claim and a survival action. Wrongful death actions are governed by a Virginia statute discussed below. When a person has a personal injury claim and then dies it is converted into what’s called a survival action which essentially perpetuates a personal injury action for the damages to the person prior to death. This is contrasted with a wrongful death action, which allows for recovery of the medical expenses and lost wages of the decedent, but the other forms of wrongful death damages are the damages suffered by survivors for their emotional and pecuniary losses based on the death of their loved one.

This is the main first paragraph of Virginia’s wrongful death statute:

  • 8.01-50. Action for death by wrongful act; how and when to be brought.
  1. 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, … and to recover damages in respect thereof, then, and in every such case, the person who, … would have been liable, if death had not ensued, shall be liable to an action for damages, …and her owners or those responsible for her acts or defaults or negligence …, 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.

A wrongful death claim belongs to legally designated beneficiaries, not the deceased’s estate. Financial compensation is not subject to inheritance taxes, estate taxes, or creditors’ claims and will be distributed according to the state’s intestacy laws regardless of whether a will exists. 

On the other hand, a survival action does belong to the estate, and any compensation recovered is subject to inheritance taxes, estate taxes, and the claims of creditors. Damages for a survival action are disseminated in accordance with the decedent’s will if one exists or according to the state’s intestacy laws if not.

The statutory provisions that govern a survival action make no reference to the amount of financial compensation recoverable. The determination of the measure of compensation has, therefore, been left up to judicial discretion. A survival action remunerates the estate of the deceased for multiple forms of damages endured by the victim, as opposed to a wrongful death claim which deals with the financial effects of the death on the beneficiaries. Dissimilar to a wrongful death claim, a survival action is not a new cause of action, but simply a continuation of the right of action that accrued to the deceased under common law. A survival action is born of the injury and not the death, the estate is substituted for the deceased, and recovery is based on the rights of action possessed by the deceased upon their passing. In a survival action, the executor of the estate can recover the same compensation as those the victim could have recovered had they survived.

Who Can Bring a Virginia Wrongful Death Claim?

The Rules of Civil Procedure state that legal action for wrongful death may be brought by the executor of the estate, by any other party entitled to a share of the compensation, or by a disinterested representative like an attorney, depending on the timing after the death. The claim that is brought first bars the institution of any other.

A survival action can be brought only by the deceased’s personal representative. It is provided by law that where the victim dies after they have commenced an action, their personal representative will be substituted as plaintiff, and where no action has been brought by the deceased, the claim can be commenced by their personal representative.

Persons entitled to be appointed as representatives and the order in which those appointments occur is prescribed by statute. The right to maintain a claim for wrongful death must not be confused with the right to share in any distribution. Likewise, the right to share in any distribution is not determinative of the right to bring an action. 

Who Can Recover in a Virginia Wrongful Death Claim?

The state’s wrongful death act provides that the right of action exists for a spouse, parent, child of the victim, or other next of kin set forth by statute. In order to recover pecuniary losses under the act, a beneficiary must have not only the requisite familial relationship to the victim but must prove that by reason of the death, they sustained the loss of a reasonable expectation of pecuniary advantage. This requirement is not applicable to emotional damage claims of the beneficiaries.

What Damages Are Available in a Wrongful Death Lawsuit?

Of course, for those mourning the loss of a family member, a lawsuit seems and is woefully inadequate. In Virginia, wrongful deaths give rise to a spectrum of financial damages for affected families. Under the law, these damages include, at a minimum, medical bills and funeral/burial expenses, as well as the expense of administering the deceased’s estate.

These laws were enacted to provide for multiple forms of restitution, including expenditures arising from their loved one’s untimely death and that includes any bills incurred as the result of another person’s negligence and the money you would have received from the deceased during their lifetime.  

Surviving family members may also receive compensation for the loss of the services the deceased would have provided during their lifetime. A loving parent who minds the children, takes care of the housework, cleans, cooks, and ferries the kids back and forth to sporting events and other activities is not only demonstrating love, but they are also providing a service that will cost money to replace.

Additionally, spouses, children, and parents are entitled to seek damages related to loss of guidance and lost advice, which is compensation for the loss of the companionship, guidance, and love they would have received. For most surviving family members, this loss is the most painful. Virginia law allows family members to seek damages for the emotional losses associated with losing a loved one as well.

For a lot of families, the full scope of the economic impact of a sudden death takes several years to be fully realized. A wrongful death lawsuit, which must normally be filed no later than two years from the day of the death, can calculate these losses to surviving family members.

Consult a Virginia Beach Wrongful Death Lawyer

If you are coping with the loss of a family member due to someone else’s negligence, you may be unsure whether or not you have a valid wrongful death claim. The experienced Virginia Beach wrongful death lawyers at Shapiro, Washburn & Sharp can examine the facts of the accident and explain your rights and legal options in a free consultation. We are committed to achieving maximum financial compensation for our clients by providing support, guidance, and strong legal representation throughout the process. In one recent case, we achieved a $3.5 million settlement for the family of a man who was killed by a negligent truck driver. To schedule a free case review with a member of our legal team, call (833) 997-1774 or fill out our easy online contact form. To better serve our clients throughout the state, we have offices in Virginia Beach, Chesapeake, Norfolk, Portsmouth, and Hampton.