DEMAND FOR SETTLEMENT - WRONGFUL DEATH
COMMONWEALTH OF VIRGINIA
[FIRM NAME]
Attorneys at Law
[Street Address]
[City, Virginia ZIP]
Telephone: [Phone]
Facsimile: [Fax]
Email: [Email]
Licensed in the Commonwealth of Virginia
DATE: [Date]
VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND FIRST-CLASS MAIL
[Claims Representative / Risk Management / Defendant]
[Insurance Company / Entity Name]
[Street Address]
[City, State ZIP]
RE: WRONGFUL DEATH CLAIM - SETTLEMENT DEMAND
Decedent: [Decedent Full Name]
Date of Death: [Date of Death]
Date of Incident: [Date of Incident, if different]
Claimant(s): [Personal Representative Name], Personal Representative
Claim Number: [If assigned]
Policy Number: [If known]
Dear [Recipient Name]:
This firm represents [Personal Representative Name], as Personal Representative of the Estate of [Decedent Name], and on behalf of all statutory beneficiaries, regarding the wrongful death of [Decedent Name], who died on [Date of Death] as a direct and proximate result of [describe cause - e.g., "a motor vehicle collision caused by your insured," "medical negligence," "a dangerous condition on your insured's property," etc.].
This letter constitutes our formal demand for settlement of all wrongful death and survival claims arising from this tragedy.
I. VIRGINIA WRONGFUL DEATH STATUTORY FRAMEWORK
A. Wrongful Death Act
This wrongful death claim is brought pursuant to Virginia Code Section 8.01-50, which provides:
"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... the person who... would have been liable if death had not ensued shall be liable to an action for damages..."
B. Who May Bring the Action
Under Va. Code Section 8.01-50, the wrongful death action must be brought by the personal representative of the decedent for the benefit of statutory beneficiaries.
Statutory Beneficiaries (Va. Code Section 8.01-53):
Distribution is as follows:
1. Surviving spouse, children, and other relatives dependent on the decedent
2. If no such beneficiaries: Other relatives entitled under the laws of intestate succession
3. The statute provides for distribution "as the court or jury may direct"
Beneficiaries in This Case:
- [ ] Surviving Spouse: [Spouse Name]
- Relationship: [Husband/Wife] of Decedent
- Married: [Date of Marriage]
-
[Years of marriage]
-
[ ] Surviving Children:
- [Child 1 Name], age [Age], [minor/adult]
- [Child 2 Name], age [Age], [minor/adult]
-
[Additional children]
-
[ ] Surviving Parents:
- [Parent 1 Name]
-
[Parent 2 Name]
-
[ ] Other Dependents:
- [Name and relationship]
C. Survival Action
Virginia recognizes a survival action under Va. Code Section 8.01-25, which allows recovery for damages the decedent could have recovered had death not ensued. However, this must be carefully analyzed as Virginia limits certain survival claims.
Personal Representative:
[Name], Personal Representative of the Estate of [Decedent Name]
Appointed: [Date] by [Court Name], Case No. [Number]
D. Statute of Limitations
Under Va. Code Section 8.01-244, the statute of limitations for wrongful death claims in Virginia is two (2) years from the date of death. The decedent died on [Date of Death], and therefore the limitations period expires on [Expiration Date].
II. PRESERVATION OF EVIDENCE NOTICE
YOU ARE HEREBY DIRECTED TO PRESERVE ALL EVIDENCE relating to this claim, including but not limited to:
- [ ] All evidence relating to the incident causing death
- [ ] All documents, photographs, and recordings
- [ ] Electronic data, including EDR/black box data (vehicle cases)
- [ ] Surveillance footage
- [ ] Communications with your insured regarding the incident
- [ ] Complete claims file and investigation materials
- [ ] All applicable insurance policies
- [ ] Prior claims or incidents involving your insured
- [ ] [Add case-specific evidence items]
Spoliation of evidence may result in sanctions and adverse inferences under Virginia law. See Wolfe v. Nat'l Lead Co., 225 Va. 471, 303 S.E.2d 894 (1983).
III. STATEMENT OF FACTS
A. The Decedent - [Decedent Name]
[Decedent Name] was a [Age]-year-old [describe decedent - occupation, family role, community involvement]:
Personal Background:
- Date of Birth: [DOB]
- Age at Death: [Age]
- Residence: [City, Virginia]
- Occupation: [Occupation/Employer]
- Annual Income: $[Amount]
- Education: [Education level]
Family:
- Spouse: [Name], married [years]
- Children: [Names and ages]
- [Other relevant family information]
Character and Contributions:
[Describe the decedent as a person - their role in the family, community involvement, personal qualities, etc.]
B. The Incident Causing Death
On [Date], at approximately [Time], [Decedent Name] was [describe activity - e.g., "driving [direction] on [Road Name]," "a passenger in a vehicle," "a pedestrian crossing [Street Name]," etc.] in [City/County], Virginia.
At that time, [Defendant/Tortfeasor Name] [describe negligent conduct - e.g., "ran a red light," "was driving while intoxicated," "was texting while driving," etc.].
[Detailed description of the incident and how it caused fatal injuries]
[Decedent Name] was transported to [Hospital Name], where [he/she] [describe - e.g., "was pronounced dead upon arrival," "died on [Date] after [time period] of intensive care," etc.].
C. The Death
[Decedent Name] [died at the scene / was transported to [Hospital] where [he/she] died / survived for [time period] before succumbing to injuries].
If Survival Period:
From the time of injury until death, a period of [time period], [Decedent Name]:
- Was conscious and aware of [his/her] impending death
- Suffered extreme physical pain from [injuries]
- [Describe other suffering during survival period]
IV. LIABILITY ANALYSIS
A. Negligence / Liability of Defendant
[Defendant Name] is liable for the wrongful death of [Decedent Name] under Virginia law.
Elements of Negligence:
Under Virginia law, a negligence claim requires proof of: (1) a legal duty on the part of the defendant; (2) breach of that duty; and (3) injury proximately caused by the breach. Atrium Unit Owners Ass'n v. King, 266 Va. 288, 585 S.E.2d 545 (2003).
- Duty: [Defendant] owed a duty of [reasonable care / safe premises / proper medical care / etc.] to [Decedent Name]
- Breach: [Defendant] breached this duty by [describe specific breaches]
- Causation: [Defendant's] breach directly and proximately caused [Decedent's] death
- Damages: [Decedent's] death has caused substantial damages to the statutory beneficiaries
B. Negligence Per Se (If Applicable)
[Defendant] violated [Statute/Regulation], which constitutes negligence per se under Virginia law. See Schlimmer v. Poverty Hunt Club, 268 Va. 74, 597 S.E.2d 43 (2004).
C. VIRGINIA CONTRIBUTORY NEGLIGENCE - CRITICAL
IMPORTANT: Virginia is one of only four jurisdictions (along with Maryland, North Carolina, and the District of Columbia) that follows the pure contributory negligence rule.
Under this doctrine, any contributory negligence by the plaintiff, however slight, is a complete bar to recovery. See Litchford v. Hancock, 232 Va. 496, 352 S.E.2d 335 (1987).
[Decedent Name] was completely free from any negligence. [He/She] was [describe lawful, careful conduct - be specific and detailed]:
- [Specific evidence of due care]
- [Specific evidence of lawful conduct]
- [Specific evidence negating any possible contributory negligence]
The Last Clear Chance Doctrine:
Even if contributory negligence were found, the defendant had the last clear chance to avoid the accident and failed to do so. Under Virginia law, the last clear chance doctrine may allow recovery notwithstanding plaintiff's contributory negligence. See Yellow Cab Co. v. Gulley, 169 Va. 611, 194 S.E. 683 (1938).
V. DAMAGES
A. Survival Action Damages (Estate Claim)
To the extent recoverable under Virginia's survival statute (Va. Code Section 8.01-25):
1. Conscious Pain and Suffering:
[Decedent Name] survived for [time period] following the injury. During this time, [he/she] experienced:
- Extreme physical pain from [injuries]
- Terror and awareness of impending death
- [Describe specific suffering]
Claimed Amount: $[Amount]
2. Pre-Death Medical Expenses:
| Provider | Service | Amount |
|---|---|---|
| [Ambulance] | Transport | $[Amount] |
| [Hospital] | Emergency/ICU Care | $[Amount] |
| [Other] | [Service] | $[Amount] |
| TOTAL PRE-DEATH MEDICAL | $[Total] |
B. Wrongful Death Damages (Beneficiary Claims)
Under Va. Code Section 8.01-52, the following damages are recoverable in a Virginia wrongful death action:
1. Sorrow, Mental Anguish, and Solace:
Virginia specifically allows recovery for "sorrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices, and advice of the decedent."
Surviving Spouse - [Spouse Name]:
| Category | Amount |
|---|---|
| Sorrow and Mental Anguish | $[Amount] |
| Loss of Society and Companionship | $[Amount] |
| Loss of Comfort | $[Amount] |
| Loss of Guidance and Advice | $[Amount] |
| Loss of Consortium | $[Amount] |
| SPOUSE'S TOTAL | $[Total] |
[Describe the marital relationship - years together, activities shared, closeness of relationship, impact of death on spouse]
Surviving Child(ren) - [Child Name(s)]:
| Category | Amount |
|---|---|
| Sorrow and Mental Anguish | $[Amount] |
| Loss of Society and Companionship | $[Amount] |
| Loss of Parental Guidance and Kindly Offices | $[Amount] |
| Loss of Advice and Counsel | $[Amount] |
| CHILDREN'S TOTAL | $[Total] |
2. Compensation for Loss to Estate (Va. Code Section 8.01-52(2)):
This includes the loss of income, services, protection, care, and assistance provided by the decedent.
| Factor | Value |
|---|---|
| Decedent's Annual Income | $[Amount] |
| Decedent's Age at Death | [Age] |
| Decedent's Work-Life Expectancy | [Years] |
| Percentage Contributed to Family | [%] |
| Present Value Discount Rate | [%] |
| TOTAL LOSS TO ESTATE | $[Amount] |
3. Loss of Services:
[Decedent Name] provided valuable household services and contributions, including:
- [Describe services - childcare, household maintenance, transportation, etc.]
- Estimated annual value: $[Amount]
- Present value of future lost services: $[Amount]
4. Expenses of Final Illness and Burial:
| Expense | Amount |
|---|---|
| Medical Expenses (Final Illness) | $[Amount] |
| Funeral Home Services | $[Amount] |
| Casket/Urn | $[Amount] |
| Cemetery/Burial Plot | $[Amount] |
| Headstone/Memorial | $[Amount] |
| TOTAL FINAL EXPENSES | $[Total] |
C. Punitive Damages
Under Va. Code Section 8.01-38.1, punitive damages may be awarded where there is clear and convincing evidence that the defendant acted with willful and wanton negligence, or such recklessness as evinces a conscious disregard for the safety of others.
[Defendant's] conduct in this matter was [willful / wanton / reckless], warranting an award of punitive damages. Specifically:
[Describe egregious conduct - e.g., drunk driving, knowing violation of safety rules, etc.]
Note: Under Va. Code Section 8.01-38.1, punitive damages in Virginia are capped at $350,000.
D. Summary of Damages
Survival Action (Estate Claim):
| Category | Amount |
|---|---|
| Conscious Pain and Suffering | $[Amount] |
| Pre-Death Medical Expenses | $[Amount] |
| TOTAL SURVIVAL DAMAGES | $[Subtotal] |
Wrongful Death Action:
| Category | Amount |
|---|---|
| Sorrow, Mental Anguish, Solace | $[Amount] |
| Loss to Estate (Income/Services) | $[Amount] |
| Final Illness and Burial Expenses | $[Amount] |
| TOTAL WRONGFUL DEATH DAMAGES | $[Subtotal] |
TOTAL ALL DAMAGES: $[Grand Total]
VI. SETTLEMENT DEMAND
A. Demand Amount
Based upon the clear liability of [Defendant], the complete absence of any contributory negligence by [Decedent Name], and the substantial damages, we hereby demand:
$[DEMAND AMOUNT]
[OR - Policy Limits Demand:]
TENDER OF ALL AVAILABLE POLICY LIMITS, INCLUDING:
- Primary liability policy: $[Amount]
- Umbrella/Excess policy: $[Amount]
- Any additional coverage: $[Amount]
- TOTAL LIMITS DEMANDED: $[Amount]
B. Time for Response
This demand will remain open for thirty (30) days from the date of this letter, through and including [Expiration Date].
Given that damages clearly exceed policy limits, failure to tender limits within this period may constitute bad faith, exposing your insured to personal liability for any excess judgment.
VII. EXCESS LIABILITY / BAD FAITH NOTICE
Please be advised that our client's damages substantially exceed the available policy limits of $[Amount]. Under Virginia law:
- You have a duty to give equal consideration to your insured's interests in settlement decisions;
- Failure to accept a reasonable settlement demand within policy limits may expose your insured to personal liability for any excess judgment;
- Such failure may also expose your company to bad faith liability;
- We demand that you immediately advise your insured of the excess exposure and of this demand.
VIII. DOCUMENTATION ENCLOSED
- [ ] Death certificate
- [ ] Letters testamentary / Letters of administration
- [ ] Medical records and bills (pre-death treatment)
- [ ] Autopsy report (if applicable)
- [ ] Funeral and burial expense receipts
- [ ] Decedent's tax returns (3 years)
- [ ] Employment records and income verification
- [ ] Photographs of decedent and family
- [ ] Marriage certificate (if spouse claimant)
- [ ] Birth certificates (if child claimants)
- [ ] Police/incident report
- [ ] Witness statements
- [ ] Expert reports (economics, vocational, medical)
- [ ] [Other case-specific documentation]
IX. CONCLUSION
The death of [Decedent Name] was a preventable tragedy caused entirely by [Defendant's] negligence. [He/She] was taken from [his/her] family, leaving [describe family - spouse and children] without [his/her] love, support, guidance, and companionship.
[Decedent Name] bore absolutely no fault for [his/her] own death. The liability in this case is clear. The damages are substantial and well-documented. We urge you to resolve this matter fairly and promptly.
If this matter cannot be resolved, we are prepared to file suit immediately in the Circuit Court for [City/County], Virginia, and prosecute this case vigorously through trial.
Please contact me at your earliest convenience to discuss resolution.
Respectfully submitted,
[FIRM NAME]
By: _________________________________
[Attorney Name]
Virginia State Bar No. [Number]
Attorney for [Personal Representative Name], Personal Representative of the Estate of [Decedent Name]
ENCLOSURES: [List]
cc: [Personal Representative]
[Beneficiaries]
[Guardian ad Litem, if applicable]
File
VIRGINIA-SPECIFIC PRACTICE NOTES
-
[ ] CRITICAL - CONTRIBUTORY NEGLIGENCE: Virginia follows pure contributory negligence - ANY negligence by decedent is a complete bar to recovery
-
[ ] Last Clear Chance: May overcome contributory negligence defense if defendant had last opportunity to avoid harm
-
[ ] Wrongful Death Statute: Va. Code Section 8.01-50 et seq. - Action by personal representative
-
[ ] Survival Action: Va. Code Section 8.01-25 - Limited survival of actions
-
[ ] Statute of Limitations: 2 years from date of death - Va. Code Section 8.01-244
-
[ ] Damages Categories: Unique in Virginia - includes "sorrow, mental anguish, and solace" - Va. Code Section 8.01-52
-
[ ] No General Damage Caps: Virginia does not cap compensatory damages in most wrongful death cases
-
[ ] Medical Malpractice Cap: Total damages capped at $2.6 million (as of 2025, increases annually) - Va. Code Section 8.01-581.15
-
[ ] Punitive Damages Cap: $350,000 - Va. Code Section 8.01-38.1
-
[ ] Government Claims: Virginia Tort Claims Act, Va. Code Section 8.01-195.1 et seq. - Notice requirements and caps apply
-
[ ] Assumption of Risk: Complete bar to recovery - analyze carefully
This template is for informational purposes only and does not constitute legal advice. Virginia follows contributory negligence, which creates unique challenges. Always verify current law and consult with a licensed Virginia attorney before use.