UNDERSTANDING THE LAW OF DAMAGES IN VIRGINIA PERSONAL INJURY CASES

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1 UNDERSTANDING THE LAW OF DAMAGES IN VIRGINIA PERSONAL INJURY CASES A potential client was severely injured in a motor vehicle collision. Four months in the hospital, six months of physical therapy, and five surgeries later, he is now at the point where he can begin to deal with his claim. All of his anger is focused on wanting to get his pound of flesh from the idiot tractor trailer driver who fell asleep at the wheel, ran the red light and T boned him in his brand new Porsche Boxster S. He has heard that you are the best of the best, the veritable cat s meow of personal injury attorneys in Virginia. During your meeting, you notice his eyes darting to your office walls, trying to read all of the accolades you have received over the years for your excellence in the personal injury arena. Inevitably, he gets around to the $64, question: How much can I get? Seasoned courtroom vet that you are, you give him a thorough lecture on the law of damages in Virginia, injecting into your tutorial the usual caveats about the vagaries of litigation and that there is no guarantee of an outcome. Juries do crazy things sometimes, etc. With sufficient limiting language, this culminates in your best estimate of what his case is worth. He leaves with a smile of satisfaction on his face, and a matching smile on yours as you look down at the executed retainer agreement. In this paper and presentation, we will look at a relatively straightforward topic the law of damages in personal injury cases in Virginia. We focus solely on the garden variety type of personal injury case, and include a discussion of wrongful death and survival damages. We will not address the presentation of damages, as that is covered otherwise in this series of presentations.

2 1. GENERAL PERSONAL INJURY DAMAGES (ECONOMIC AND NON ECONOMIC) The standard for your burden of proof in a negligence based personal injury case is preponderance of the evidence, or more likely than not. I like to call it 51%. Some of my sharper colleagues call it 50.1%. The jury instructions refer to it as the greater weight of the evidence. VMJI Civil Under the general rubric of compensatory damages, we refer to its two components as economic damages and non economic damages. Economic damages refers to compensation for objectively verifiable monetary losses, such as past and future medical expenses, loss of past and future earnings, loss of use of property, costs of repair or replacement, etc. Non economic damages refers to compensation for subjective, non monetary losses such as pain, suffering, inconvenience, emotional distress, loss of society and companionship, loss of consortium, and loss of enjoyment of life. Subject to the trial court s statutory right to reduce the verdict (remittitur) or to increase the verdict (additur), there is no cap on compensatory damages in a personal injury action. Under VMJI , the jury is instructed to consider all of the following in formulating its compensatory damages (i.e., both economic and non economic) award in a personal injury case: (1) any bodily injuries he sustained and their effect on his health according to their degree and probable duration; (2) any physical pain [and mental anguish] he suffered in the past [and any that he may be reasonably expected to suffer in the future]; (3) any disfigurement or deformity and any associated humiliation or embarrassment; (4) any inconvenience caused in the past [and any that probably will be caused in the future]; 2

3 (5) any medical expenses incurred in the past [and any that may be reasonably expected to occur in the future]; (6) any earnings he lost because he was unable to work at his calling; (7) any loss of earnings and lessening of earning capacity, or either, that he may reasonably be expected to sustain in the future; (8) any property damage he sustained. VMJI Civil Certainly, if the plaintiff does not adduce any evidence from which a jury can reasonably find or infer any particular category of damage listed above, then the Court may refuse to include in its instructions any such elements of damages. For example, if the plaintiff did not miss any work as the result of the subject incident, a good defense counsel will generally request that the Court omit such an element from the instruction. Remember the instruction as written is not sacrosanct. It will be adjusted in light of the evidence adduced at trial. Defense counsel may also seek to exclude such evidence in limine, prior to trial. Also, sometimes the jury can infer from the evidence that the plaintiff suffered a type of compensable damage. For example, in Armstead v. James, 220 Va. 171, , 257 S.E.2d 767, 769, 1979 Va. LEXIS 250, ***7, the plaintiff, who had been in a motor vehicle collision, suffered a rather severe deformity of her arm as the result of an elbow injury. During his testimony, her physician mentioned the deformity at least three times. The trial court refused to submit to the jury the language of subsection (3) of VMJI Civil 9.000, regarding disfigurement or deformity and any associated humiliation or embarrassment. In reversing the trial court, the Virginia Supreme Court held: The trial court also erred in requiring, as a condition to including the foregoing paragraph in the damage instruction, direct testimonial evidence of humiliation and embarrassment associated with the deformity. Under similar facts involving a leg injury, we held in [*174] Beasley v. Bosschermuller, 206 Va. 360, 367, 143 S.E.2d 881, 887 (1965), that with evidence of a deformity the jury could have properly concluded, without being presented with direct evidence on the subject, that plaintiff's injuries were a source of humiliation and 3

4 embarrassment to him. We thus decided that the trial court properly included such an element in the damage instruction. Id. (emphases added). It is also important to remember that you do not need to prove the exact amount or with absolute precision the amount of the plaintiff s damages. The plaintiff must show sufficient facts and circumstances to permit [the jury] to make a reasonable estimate of each item [of damages]. VMJI Civil Pursuant to Va. Code Ann , you are expressly permitted to inform the jury of the amount of damages sought by the plaintiff, in the opening statement, in closing argument, or both. You may also request an amount which is less than the ad damnum in the complaint. Id. As a general matter, prior to closing arguments, the Court will inquire of you as to whether you intend to mention the amount sued for, so that the Court can give an instruction that the amount sued for is not evidence. Id. Interest on the judgment will run at 6% per annum until paid. See, Va. Code Ann , as made applicable by COLLATERAL SOURCE RULE More and more, states are passing anti collateral source rule statutes. Such statutes generally provide that a plaintiff in a personal injury action can only recover for medical expenses to the extent that the claimant actually paid or was responsible for paying such expenses. It can also apply where, for example, a person who is injured still receives his salary from his employer during his time off due to the injury (sick leave, vacation time, accrued comp time, random act of kindness, etc.). For example, Texas has enacted Tex. Civ. Prac. & Rem. Code , entitled Evidence Relating to Amount of Economic Damages, which provides: In addition to any other limitation under law, recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant. Id. The purpose is obvious. Texas has a public policy that favors the tort defendant in a situation where the claimant has health insurance, and does not wish to confer the possibility of a double recovery or windfall by the claimant. 4

5 In Virginia, on the other hand, the collateral source rule is still alive and well. Because the mere mention of the word insurance at a personal injury trial in Virginia runs the serious risk of a mistrial, rarely will the Court give a collateral source rule instruction. However, it does exist. Under VMJI 9.015, the jury is instructed: The presence or absence of insurance or benefits of any type, whether liability insurance, health insurance, or employment related benefits for either the plaintiff or the defendant, is not to be considered by you in any way in deciding the issue of liability or, if you find your verdict for the plaintiff, in considering the issue of damages. The existence or lack of insurance or benefits shall not enter into your discussions or deliberations in any way in deciding the issues in this case. You shall decide this case solely on the basis of the testimony and evidence presented in the courtroom, as well as the other instructions given to you by the court. Id. The Virginia Supreme Court squarely addressed the issue, in the lost income context, in Bullard v. Alfonso, 267 Va. 743, 595 S.E.2d 284, 2004 Virginia LEXIS 65. In Bullard, a plaintiff in a motor vehicle personal injury case asserted that due to his collision related injuries, he had been unable to work as a drywall hanger for about six months, at a monthly wage of $4, However, the employer had continued to pay him his wages during that period when he was unable to work. The defendant moved in limine to exclude the lost wage claim since he had continued to receive his salary during that period. The trial court granted the motion and excluded the evidence of lost wages. After a verdict in his favor on a much lesser amount, the plaintiff appealed. In reversing and remanding the case, the Virginia Supreme Court made two observations. First, it cited to Va. Code Ann , which specifically provides: In any suit brought for personal injury or death, provable damages for loss of income due to such injury or death shall not be diminished because of reimbursement of income to the plaintiff or decedent from any other source, nor shall the fact of any such reimbursement be admitted into evidence. Id. Second, the Court cited to the collateral source rule, which was first recognized by that Court more than a century ago, in Baltimore & Ohio R.R. Co. v. Wightman, 70 Va. (29 Gratt) 431 5

6 (1877). The Court noted one of its recent decisions, Acuar v. Letourneau, 260 Va. 180, 192, 531 S.E.2d 316, 322, 2000 Va. LEXIS 107, ***23, where it held that the portions of bills for medical expenses written off by a plaintiff s health care providers could not be deducted from the amount of damages owed by a tortfeasor. The Court stated that the injured party should be made whole by the tortfeasor, not by a combination of compensation from the tortfeasor and collateral sources. Id. Virginia even has an anti subrogation law, Va. Code Ann , which bars health insurers who have reimbursed the plaintiff s health care providers from asserting subrogation liens against the civil claim. However, if the insurer is a self funded plan, then under federal preemption, ERISA preempts the statute s application to a self funded benefit plan, and subrogation can be asserted. State Farm Mut. Auto. Ins. Co. v. Smith, 342 F. Supp. 2d 541, (W.D. Va. 2004). 3. DUTY TO MITIGATE DAMAGES In a personal injury trial, undoubtedly every good defense attorney will request that the Court give VMJI Civil 9.020, which requires the plaintiff to mitigate his damages: The plaintiff has a duty to minimize his damages. If you find that the plaintiff did not act reasonably to minimize his damages and that, as a result, they increased, then he cannot recover the amount by which they increased. Id. In the absence of any evidence supporting the notion that your client failed to minimize his damages, you should argue vehemently against the giving of this instruction. In Brown v. Huddleston, 213 Va. 146, 191 S.E.2d 234 (1972), the Virginia Supreme Court approved the trial court's action in giving such an instruction in a personal injury case in which the jury awarded the plaintiff $1, in damages. In that case, within seventeen days of the motor vehicle collision, the plaintiff's treating physician could find nothing physically wrong with her. Nevertheless, the plaintiff thereafter visited another physician thirty three times before the date of that trial, held almost three years after the collision, complaining of pain in her neck, hips and lower spine. At trial, the plaintiff claimed special damages of $

7 The Court held that it was not error to grant an instruction on the duty to minimize damages because "the instruction merely permitted the jury to disallow those items of damage which it found not reasonably related to the accident." Id, 213 Va. at 148, 191 S.E.2d at 235. But be warned if a client ignores his physician s repeated recommendations for treatment, and as a result either gets worse or his recuperation is severely delayed, you may find yourself facing such an instruction. 4. AGGRAVATION OF PRE EXISTING CONDITION We all remember learning in Torts 101 about the eggshell plaintiff theory. In a nutshell (or perhaps an eggshell might be the better terminology), the tortfeasor takes his plaintiff as he is predispositions to injury, pre existing conditions, and all. While the plaintiff cannot recover for the pre existing condition itself, he can certainly recover for any aggravation of that condition, as well as for any increased severity or difficulty in treatment. VMJI Civil reads as follows: If you find that the plaintiff had a condition before the accident that was aggravated as a result of the accident or that the pre existing condition made the injury he received in the accident more severe or more difficult to treat, then if you find your verdict for the plaintiff, he may recover for the aggravation and for the increased severity or difficulty of treatment, but he is not entitled to recover for the pre existing condition. Id. But make sure that in presenting your evidence, you separate the proverbial wheat from the chaff, and do not overreach if your client had a pre existing condition, or the jury will bite your hand off and penalize your client. Bring out the pre existing condition during your case in chief, embrace it, and emphasize to the jury that is because of the pre existing condition that your client was so severely injured; indeed, much more severely injured than an otherwise healthy individual would have been. Explain that instruction to the jury in sufficient detail, so that when they deliberate, they have a clear understanding of your client s rights. 5. AGGRAVATION OF INJURIES BY PHYSICIAN 7

8 Imagine that your client is involved in a motor vehicle collision, and is taken to the emergency room, where the doctor botches the treatment, a terrible infection sets in, and your client loses his leg. Had the doctor met the standard of care, your client would have fully healed without any serious consequences. Is that considered a superseding or intervening cause, such that the original tortfeasor s liability would be cut off? No. Virginia follows the rule that where one has received a personal injury as a result of the negligence of another and pursues due care in the selection of a physician or surgeon to treat the injuries and they are aggravated by the negligent treatment of such physician or surgeon, the person causing the original injury is liable for the resulting damage to the full extent. Fauver v. Bell, 192 Va. 518, 65 S.E.2d 575, 578 (1951). Id. This is reflected in VMJI Civil 9.040: If you believe by the greater weight of the evidence: (1) that the defendant is liable for the plaintiff's injuries; (2) that the plaintiff used reasonable care in selecting a physician to treat his injuries; and (3) that the treating physician made the injuries worse; then the plaintiff is entitled to damages from the defendant for the increase in his injuries caused by the physician. 6. PUNITIVE DAMAGES Under Virginia law, in order to recover punitive damages, the plaintiff must prove that the defendant acted either with actual malice or with willful and wanton negligence. VMJI Civil The purpose of punitive damages is twofold: (1) to punish the defendant for his actions; and (2) to serve as an example to prevent others from acting in a similar way. Id. Actual malice is defined as a sinister or corrupt motive such as hatred, personal spite, ill will, or a desire to injure the plaintiff. VMJI Civil The Virginia Supreme Court, in Alfonso v. 8

9 Robinson, 257 Va. 540, 545; 514 S.E.2d 615, 618; 1999 Va. LEXIS 66, ***7 8, explained willful and wanton negligence: Id. Willful and wanton negligence is action taken in conscious disregard of another's rights, or with reckless indifference to consequences that the defendant is aware, from his knowledge of existing circumstances and conditions, would probably result from his conduct and cause injury to another. Harris v. Harman, 253 Va. 336, , 486 S.E.2d 99, 101 (1997); Clohessy v. Weiler, 250 Va. 249, 252, 462 S.E.2d 94, 96 (1995); Griffin v. Shively, 227 Va. 317, , 315 S.E.2d 210, 213 (1984). Each case raising an issue of willful and [***8] wanton negligence must be evaluated on its own facts, and a defendant's entire conduct must be considered in determining whether his actions or omissions present such a question for a jury's determination. Clohessy, 250 Va. at 253, 462 S.E.2d at 97; Huffman v. Love, 245 Va. 311, , 427 S.E.2d 357, (1993). Willful and wanton negligence, unlike gross or ordinary negligence, requires an actual or constructive consciousness that injury will result from the act done or omitted. Infant C. v. Boy Scouts of America, Inc., 239 Va. 572, , 391 S.E.2d 322, 327 (1990); see Wolfe v. Baube, 241 Va. 462, 465, 403 S.E.2d 338, (1991); Boward v. Leftwich, 197 Va. 227, 231, 89 S.E.2d 32, 35 (1955). However, ill will is not a necessary element of willful and wanton negligence. Infant C., 239 Va. at 581, 391 S.E.2d at 327; Baker v. Marcus, 201 Va. 905, 909, 114 S.E.2d 617, 621 (1960). Unfortunately, there is a $350, punitive damages cap in Virginia. Va. Code Ann The cap has been held to be constitutional. See, Wackenhut Applied Technologies Ctr., Inc. v. Sygnetron Protection Sys., 979 F.2d 980 (4th Cir. 1992). The cap applies to the action as a whole, and not to each defendant. Al Abood v. El Shamari, 217 F.3d 225, 2000 U.S. App. LEXIS (4th Cir. 2000). So if you are asserting punitives against a mega corporation, it is questionable as to how much punishment a $350, award would have, or how much deterrent effect it would have on a similar corporation. Virginia has a separate statute addressing the recovery of punitive damages against an intoxicated driver. The standard malice or willful and wanton misconduct is the same, but can be proven in a slightly different manner. Under Va. Code Ann , the jury may 9

10 award punitive damages in a motor vehicle tort action if the evidence proves malice or willful and wanton misconduct. The plaintiff may prove such conduct by adducing evidence that: (i) when the incident occurred, defendant had a BAC of 0.15% or greater; (ii) at the time defendant began drinking alcohol, or during the time he was drinking alcohol, he knew/should have known his ability to operate motor vehicle, engine or train would be impaired, or when operating the vehicle he knew/should have known his ability to operate a motor vehicle was impaired; and (iii) defendant s intoxication was a proximate cause of the injury/death. If the defendant unreasonably refused to submit to a BAC test, willful or wanton misconduct may be proven if the evidence shows that (i) when the incident occurred, the defendant was intoxicated (may be proven by evidence about conduct or condition); (ii) at the time the defendant began drinking alcohol or during the time he was drinking alcohol, he knew/should have known his ability to operate motor vehicle was impaired; and (iii) defendant s intoxication was a proximate cause of the injury/death. Finally, punitive damages are available in a wrongful death action as well, and the jury may distribute the punitive damages amongst/between the statutory beneficiaries. Va. Code Ann (5); VMJI Civil REMITTITUR, ADDITUR, NEW TRIAL All of us dream about the day when during deliberations, the jury that sends out a note, asking: Are we limited in our award to the amount that the plaintiff sued for? Remember that while the trial judge for all intents and purposes appears to be the umpire during the trial, he/she wields the heaviest of judicial sticks when it comes to the amount of the verdict. The jury can award a billion dollars, but if the judge thinks it is too much, it will be reduced ( remittitur ). Similarly, if the judge thinks the award is too low, he/she can increase it ( additur ). Or the judge can order a new trial twice. The jury is not told any of this, of course. However, the Virginia Code addresses these situations. Under Va. Code Ann , in any civil case tried before a jury, and absent any other special provision to the contrary, the court may grant a new trial, including the scenario where the court deems the damages too small or excessive. But no more than two trials may be 10

11 granted (either by the trial court r an appellate court) to the same party in the same case on the ground that the verdict is contrary to the evidence. Id. The power to order a remittitur lies within the sound discretion of the trial court. Robinson v. Old Dominion Freight Line, 236 Va. 125, 372 S.E.2d 142 (1988). In Rutherford v. Zearfoss, 221 Va. 685, 689; 272 S.E.2d 225, ; 1980 Va. LEXIS 290, ***10, citing Smithey v. Refining Co., 203 Va. 142, 146, 122 S.E.2d 872, 876 (1961), the Virginia Supreme Court recited the standard for a trial court s grant of a remittitur: Id. But if it appears that the verdict is so excessive as to shock the conscience of the court and to create the impression that the jury has been influenced by passion, corruption or prejudice, or has misconceived or misunderstood the facts or the law, or if the award is so out of proportion to the injuries suffered to suggest that it is not the product of a fair and impartial decision, then it becomes the plain duty of the judge, acting within his legal authority, to correct the injustice. Once a trial judge reaches the conclusion that a verdict is excessive and that a new trial should be ordered, it is in his discretion to decide whether a new trial should be on damages alone or on all issues ab initio (from the beginning). Rutherford, 221 Va. at ; 272 S.E.2d at 228; 1980 Va. LEXIS 290 at ***11. But must be read congruently with Va. Code Ann , which governs appeals arising out of additurs and remittiturs. Under that statute, in the case of a remittitur (i.e., where the court requires the plaintiff to reduce his recovery or submit to a new trial), the plaintiff may remit and accept judgment for the reduced sum under protest, but then petition for an appellate review of same. Similarly, if the defendant is awarded an appeal, the Supreme Court may review the remitted judgment, regardless of the amount. In the event that the trial court finds that the award is inadequate, then the court may (1) award a new trial or (2) require the defendant to pay an amount in excess of the verdict. If either the plaintiff or the defendant declines to accept the additional award, then the court must award a new trial. If additur is accepted by either party under protest, it may be reviewed on appeal. Id. 8. LIFE EXPECTANCY 11

12 Virginia has codified a life expectancy table at Va. Code Ann , both by gender and combined. In any wrongful death case or personal injury case where you are asserting permanency of injury, it is imperative that you request that the Court give VMJI Civil 9.120, which reads: You should consider the life expectancy figure introduced as evidence along with any other evidence relating to the health, constitution, and habits of (name of plaintiff) [(name of decedent)] in determining his life expectancy. Id. This is a very effective tool to use in wrongful death cases (discussed below). I always introduce the life expectancy not only of the decedent, but also the life expectancy of each of the statutory beneficiaries, so that the jury can see the total number of years lost with the decedent as a result of the tortious death. Virginia courts in my experience have always given an instruction on the statutory life expectancy of the decedent and each beneficiary. Be ready to defend the health of any such individual so that the defense is not able to reduce the life expectancy by introducing adverse health issues, which the jury may consider. 9. SURVIVAL ACTIONS To suggest that Virginia recognizes survival actions in the traditional sense of the word is a bit of a misnomer. While jurisdictions such as Maryland and the District of Columbia each recognize both a survival and a wrongful death action arising out of a death caused by the tortious act of another, Virginia does not. In aberration of the common law, Virginia does recognize a survival action, but only if the cause of action arises from an injury which did not cause the death of the injured person. In other words, assume that a person suffers injury at the hands of another. This gives rise to a tort claim for that injury, whether based in negligence, gross negligence, willful and wanton misconduct, etc. If the injured person dies after the cause of action for that injury accrues, but dies of causes unrelated to the injury, then the action would proceed as a survival action under Va. Code Ann In other words, it is brought solely on behalf of the estate of the decedent, i.e., the pre death accrued cause of action survives the person s death. 12

13 Thus, a true survival action in Virginia is really a garden variety personal injury case, but the claimant is deceased. Thus, when preparing a jury instruction akin to VMJI Civil discussed above, you will need to revise the instruction to eliminate any mention of future loss. 10. WRONGFUL DEATH As discussed above, in Virginia there really is no survival action that can be brought when the tortious act causes the death. Indeed, under Va. Code Ann and , if an injured person, while alive, commences a personal injury action for damages, and then dies as a result of the injury complained of, the action must be amended so as to conform with In other words, it must be converted into a wrongful death action. See, e.g., Wright v. Eli Lilly & Co., 65 Va. Cir. 485, 2004 Va. Cir. LEXIS 295 (Portsmouth 2004). This dramatically changes the landscape of the case. No longer is the claim brought for the benefit of the estate, but rather, it becomes a wrongful death action brought solely for the benefit of the wrongful death statutory beneficiaries. As such, any damages recovered in a wrongful death action are not part of the decedent s estate, and can be distributed as set forth in the applicable statutes. Porter v. VEPCO, 183 Va. 108, 31 S.E.2d 337 (1944). Under Va. Code Ann (B), every wrongful death action shall be brought by and in the name of the personal representative of the deceased person. The categories of damages recoverable on behalf of the statutory beneficiaries in a wrongful death action are listed in Va. Code Ann , and reiterated in VMJI Civil 9.100, as follows: If you find your verdict for the plaintiff, then in determining the damages to which he is entitled, you shall include, but are not limited to, any of the following which you believe by the greater weight of the evidence were caused by the negligence of the defendant as damages suffered by the beneficiaries: (1) any sorrow, mental anguish, and loss of solace suffered by the beneficiaries. Solace may include society, companionship, comfort, guidance, kindly offices, and advice of the decedent; (2) any reasonably expected loss in income of the decedent suffered by the beneficiaries; (3) any reasonably expected loss of services, protection, care, and assistance which the decedent provided to the beneficiaries; 13

14 (4) any expenses for the care treatment, and hospitalization of the decedent incident to the injury resulting in his death; and (5) reasonable funeral expenses. If you award damages under paragraphs (1), (2), and (3) above, you may distribute these damages among [between] (name of spouse, children, and children of any deceased child of decedent) or (names of surviving statutory beneficiaries). If you award damages under (4) and (5) above, you shall specifically state the amount of damages for each. Id. Va. Code Ann further requires that with respect to damages recoverable under subsections (4) and (5), as well as punitive damages, such damages shall be specifically stated by the jury or the court. Damages recoverable under subsections (4) and (5) shall be apportioned among the creditors who rendered such services, as their respective interest may appear. Id. As mentioned above, if the jury finds the requisite degree of conduct willful or wanton conduct, or such recklessness as evinces a conscious disregard for the safety of others punitive damages may be awarded in wrongful death cases. See, Va. Code Ann (5); VMJI Civil The jury is instructed that if it awards punitive damages, it must state separately in the verdict the amount it allows as punitive damages, and it may distribute those damages among/between the surviving statutory beneficiaries. Id. However, punitive damages may not be awarded after the death of the party liable for the injury. Va. Code Ann In other words, a plaintiff cannot recover punitive damages against the estate of a deceased tortfeasor. Presumably this is because the punishment prong of the dual purposes for punitives goes away. How and when are the statutory beneficiaries identified and defined? Va. Code Ann delineates the classes and order of beneficiaries. Wrongful death damages are distributed as follows: (i) to the surviving spouse, children of the deceased and children of any deceased child of the deceased OR 14

15 (ii) (iii) (iv) (v) 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 no survivors under clause (i) or (iii), 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 under clause (i), (ii), (iii), or (iv), the award shall be distributed in the course of descents as provided for in Id. However, no parent whose parental rights and responsibilities have been terminated either judicially or by a permanent entrustment agreement with a child welfare agency are eligible to recover. Id. Relative is defined as any person related to the decedent by blood, marriage, or adoption and also includes a stepchild of the decedent. Id. Under Va. Code Ann , any verdict and judgment in a wrongful death action must specify the amount or proportion of the award to be received by each beneficiary. Either party has the right to have the jury instructed to apportion the award. However, if the jury either is unable to agree on an apportionment or it fails to do so, the Court may do so, and may hear additional evidence. The amount recovered is paid to the personal representative who must first pay the costs and reasonable attorney s fees, then distribute the amounts specifically allocated to hospital, medical and funeral expenses. The remainder is then distributed to the beneficiaries such funds are free from all debts and liabilities of the decedent. Id. The class and beneficiaries eligible to receive distribution of wrongful death proceeds is fixed (i) at the time the verdict is entered if the jury makes the specification, or (ii) at the time the judgment is rendered if the court specifies the distribution. Va. Code Ann (B). 15

16 Several years ago, I handled a case where a fourteen year old girl was killed as a pedestrian, by a motor vehicle driver. She was survived by her two parents and two brothers. However, between the time of her death and the verdict, her parents had another daughter. The jury awarded a total of $2,016,000.00, and apportioned $50, of the award to the after born sibling. Any beneficiary may renounce his interest in any wrongful death action. If that happens, then the damages are distributed to the beneficiaries in the same class as the renouncing beneficiary, or if none, to the beneficiaries in any subsequent class in the order of priority set forth in (A) (C). CONCLUSION With little exception, the damages recoverable in a Virginia personal injury/wrongful death action are purely a matter of statute. Hopefully this paper serves as a primer to help you identify the pertinent statutes to review, and give you guidance when prosecuting your personal injury case. This paper is not meant to suggest how you present your damages evidence or what experts to hire, as that is covered in another presentation, and is limited only by your own creativity. I strongly encourage you to think outside the box when formulating your damages calculations. For example, consider all consequential damages resulting from the injury. The way I like to describe it is to instruct the client, Tell me every single expense you have incurred, or anticipate incurring, that but for this incident you would not have incurred. This can include things such as hiring lawn maintenance people because the client cannot mow the lawn; taking taxis everywhere because he cannot drive; purchasing special pillows/cushions to help ease the pain; hiring a maid to do household services he used to do, etc. Obviously medical experts will have to give you opinions regarding future medical needs, but make sure to contemplate lost future earnings during such period of future medical treatment. You may even need to hire a vocational rehabilitation consultant to opine as to diminished earning capacity. The list goes on and on. In the wrongful death context, make sure to focus both on the financial losses (lost earnings capacity, household services cost, medical expenses, funeral expenses) and the 16

17 psychological losses (consider introducing expert testimony regarding grief counseling, therapeutic needs for the beneficiaries). Your job is to paint a full picture of the impact of the death upon the beneficiaries, both economic and non economic. If punitive damages are warranted, then your job is to introduce evidence sufficient to meet your burden of proof for the degree of conduct. Good luck! Peter Grenier If you are an injured victim, or an attorney, and would like to discuss a potential case. Please contact my firm at (202) I would be happy to hear from you. The information provided herein is intended for informational purposes only. This information may not reflect current legal developments and is general in nature. Nothing set forth herein should be construed as providing legal advice regarding an individual situation. No attorney-client relationship is created between the reader or user of this material and Grenier Law Group PLLC. Reading the information herein, sending us information, or receipt of information from us does not establish an attorney-client relationship. We invite you to contact us, and we welcome your calls, letters and electronic mail, however; contacting Grenier Law Group PLLC does not contractually obligate Grenier Law Group PLLC to represent you as your attorney, does not create an attorney-client relationship or other privileged or confidential relationship, and provides Grenier Law Group PLLC the right to use or disclose any such information that has been submitted to Grenier Law Group or its attorneys. 17