DEMAND FOR SETTLEMENT - WRONGFUL DEATH
STATE OF WEST VIRGINIA
[FIRM NAME]
Attorneys at Law
[Street Address]
[City, West Virginia ZIP]
Telephone: [Phone]
Facsimile: [Fax]
Email: [Email]
Licensed in the State of West 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. WEST VIRGINIA WRONGFUL DEATH STATUTORY FRAMEWORK
A. Wrongful Death Statute
This wrongful death claim is brought pursuant to West Virginia Code Section 55-7-5, which provides:
"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, 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..."
B. Who May Bring the Action
Under W. Va. Code Section 55-7-6, the wrongful death action must be brought by the personal representative of the decedent's estate for the benefit of statutory beneficiaries.
Statutory Beneficiaries (W. Va. Code Section 55-7-6):
- Surviving spouse
- Children (including adopted children)
- Parents (if no spouse or children)
- Brothers and sisters (if no spouse, children, or parents)
- Other dependents
Distribution is per the statute unless otherwise directed by the jury/court.
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]
C. Survival Action
West Virginia recognizes a survival action under W. Va. Code Section 55-7-8a, which allows the estate to recover damages the decedent could have recovered had death not ensued, including pain and suffering from injury to death.
Personal Representative:
[Name], Personal Representative of the Estate of [Decedent Name]
Appointed: [Date] by [Court Name], Case No. [Number]
D. Statute of Limitations
Under W. Va. Code Section 55-7-6, the statute of limitations for wrongful death claims in West 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 West Virginia law. See Mace v. Ford Motor Co., 221 W. Va. 198, 653 S.E.2d 660 (2007).
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, West 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] County, West 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]
This conscious pain and suffering during the survival period is compensable under the survival action.
IV. LIABILITY ANALYSIS
A. Negligence / Liability of Defendant
[Defendant Name] is liable for the wrongful death of [Decedent Name] under West Virginia law.
Elements of Negligence:
Under West Virginia law, a negligence claim requires proof of: (1) a duty owed to the plaintiff by the defendant; (2) breach of that duty; (3) injury resulting from the breach; and (4) the negligent act or omission was the proximate cause of the injury. Syl. Pt. 2, Hartley v. Croad, 220 W. Va. 362, 647 S.E.2d 784 (2007).
- 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 West Virginia law. See Anderson v. Moulder, 183 W. Va. 77, 394 S.E.2d 61 (1990).
C. West Virginia Comparative Negligence
West Virginia follows modified comparative negligence with a 50% bar rule that bars recovery if fault is equal or greater. Under Bradley v. Appalachian Power Co., 163 W. Va. 332, 256 S.E.2d 879 (1979), a plaintiff whose negligence equals or exceeds 50% of the total negligence is completely barred from recovery.
[Decedent Name] bore no fault for [his/her] own death. [He/She] was [describe lawful, careful conduct].
V. DAMAGES
A. Survival Action Damages (Estate Claim)
The survival action recovers damages suffered by [Decedent Name] between injury and death pursuant to W. Va. Code Section 55-7-8a:
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] |
3. Pre-Death Lost Earnings:
Lost wages from date of injury to date of death: $[Amount]
B. Wrongful Death Damages (Beneficiary Claims)
Under W. Va. Code Section 55-7-6, the following damages are recoverable in a West Virginia wrongful death action:
1. Pecuniary Loss / Loss of Financial Support:
| 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 OF SUPPORT | $[Amount] |
2. 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]
3. Sorrow, Mental Anguish, and Solace:
West Virginia allows recovery for the sorrow, mental anguish, and solace of the beneficiaries. See Syl. Pt. 7, Kimble v. Witt, 167 W. Va. 715, 280 S.E.2d 293 (1981).
Surviving Spouse - [Spouse Name]:
| Category | Amount |
|---|---|
| Sorrow and Mental Anguish | $[Amount] |
| Loss of Companionship and Society | $[Amount] |
| Loss of Consortium | $[Amount] |
| Loss of Comfort and Solace | $[Amount] |
| SPOUSE'S TOTAL NON-ECONOMIC | $[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 Companionship and Society | $[Amount] |
| Loss of Parental Guidance | $[Amount] |
| Loss of Comfort and Solace | $[Amount] |
| CHILDREN'S TOTAL NON-ECONOMIC | $[Total] |
4. Funeral and Burial Expenses:
| Expense | Amount |
|---|---|
| Funeral Home Services | $[Amount] |
| Casket/Urn | $[Amount] |
| Cemetery/Burial Plot | $[Amount] |
| Headstone/Memorial | $[Amount] |
| Memorial Service | $[Amount] |
| TOTAL FUNERAL EXPENSES | $[Total] |
C. Punitive Damages
Under W. Va. Code Section 55-7-29, punitive damages are available where the defendant's conduct shows actual malice, wanton, willful, or reckless conduct, or criminal indifference to civil obligations affecting the rights of others.
[Defendant's] conduct in this matter was [willful / wanton / reckless / criminally indifferent], warranting an award of punitive damages. Specifically:
[Describe egregious conduct - e.g., drunk driving, knowing violation of safety rules, etc.]
Note: West Virginia imposes some limitations on punitive damages based on net worth and other factors. W. Va. Code Section 55-7-29.
D. Summary of Damages
Survival Action (Estate Claim):
| Category | Amount |
|---|---|
| Conscious Pain and Suffering | $[Amount] |
| Pre-Death Medical Expenses | $[Amount] |
| Pre-Death Lost Earnings | $[Amount] |
| TOTAL SURVIVAL DAMAGES | $[Subtotal] |
Wrongful Death Action:
| Category | Amount |
|---|---|
| Loss of Financial Support | $[Amount] |
| Loss of Services | $[Amount] |
| Sorrow, Mental Anguish, Solace | $[Amount] |
| Funeral and Burial Expenses | $[Amount] |
| Spouse's Non-Economic Damages | $[Amount] |
| Children's Non-Economic Damages | $[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 catastrophic loss suffered by the surviving family members, and the substantial economic and non-economic 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 West 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;
- West Virginia recognizes first-party bad faith claims under Hayseeds, Inc. v. State Farm Fire & Cas., 177 W. Va. 323, 352 S.E.2d 73 (1986);
- 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.
The liability in this case is clear. The damages are substantial and well-documented. We urge you to resolve this matter fairly and promptly, avoiding the additional trauma and expense of litigation for all parties.
If this matter cannot be resolved, we are prepared to file suit immediately in the Circuit Court for [County] County, West 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]
West 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
WEST VIRGINIA-SPECIFIC PRACTICE NOTES
-
[ ] Wrongful Death Statute: W. Va. Code Section 55-7-5 et seq. - Action by personal representative
-
[ ] Survival Action: W. Va. Code Section 55-7-8a - Separate cause of action for decedent's pre-death damages
-
[ ] Statute of Limitations: 2 years from date of death - W. Va. Code Section 55-7-6
-
[ ] Modified Comparative Negligence: 50% bar rule (equal fault bars recovery) - Bradley v. Appalachian Power Co.
-
[ ] Beneficiary Priority: Spouse, children, parents, siblings, other dependents
-
[ ] No Damage Caps: West Virginia does not cap compensatory damages in wrongful death cases
-
[ ] Punitive Damages: Available under W. Va. Code Section 55-7-29; some limitations apply
-
[ ] Medical Malpractice: W. Va. Code Section 55-7B - Specific procedural requirements including certificate of merit
-
[ ] Government Claims: Claims against state must comply with W. Va. Code Section 14-2-1 et seq.
-
[ ] Bad Faith: Hayseeds doctrine - Strong first-party bad faith remedies available
This template is for informational purposes only and does not constitute legal advice. Wrongful death claims in West Virginia have specific procedural requirements. Always verify current law and consult with a licensed West Virginia attorney before use.