When the At-Fault Driver Has Died, Your Family Still Has Options

The Short Answer: A Claim Can Often Continue

If the at-fault driver dies, the injured person’s claim often does not end with that death. West Virginia law generally lets a claim for injuries survive the death of the person who caused them, and the claim is usually pursued against that driver’s estate and insurance. Whether a particular claim can move forward depends on the facts of the crash, the injuries, and who else was involved.

Families often ask this question while a loved one is still in the hospital, or after a funeral. Those are hard moments for legal questions, so plain answers can help you decide what to do next.

W. Va. Code § 55-7-8a says causes of action for injuries to a person that do not result in death survive. They may be brought even after the death of the person liable.

We handle catastrophic injury claims, including car and truck crash claims, across West Virginia. We also handle wrongful death claims for families. For an overview of serious injury cases, read our catastrophic injuries page.

Why the Driver’s Death Does Not Automatically End the Claim

A driver’s responsibility for the harm they cause can generally continue through their estate after death. An estate is the property and debts a person leaves behind.

W. Va. Code § 55-7-5 says a right of action for injury to another person survives the wrongdoer’s death. It may be enforced against the executor or administrator of that person’s estate.

The personal representative is the person who acts for the estate in court. A court appoints this person to manage the estate and any claims made against it. Finding the personal representative, the estate’s assets, and the insurance on the vehicle can take time.

These early steps vary by case. Each estate has its own paperwork and its own timeline, so the details matter.

Survival Claims and Wrongful Death Claims

A survival claim covers the injured person’s own losses. A wrongful death claim covers a family’s losses when that person dies.

If the injured person dies before filing, the personal representative may begin the action, unless the injured person, not an infant, compromised for the injury and accepted satisfaction therefor before death. W. Va. Code § 55-7-8a says it must be started within the same period that would have applied had the injured person not died. If the at-fault driver dies after a lawsuit has begun, the case may be revived against the driver’s personal representative.

If the injured person later dies from the crash, a wrongful death claim may be available. W. Va. Code § 55-7-6 says the claim is brought by the personal representative of the deceased person.

The verdict must include damages for sorrow, mental anguish, and solace, and the list is not limited to those items.

For more on how these losses are described, see our pain and suffering explainer.

Where Compensation May Come From

Often, the first source a claim looks to is the at-fault driver’s auto liability insurance. Some insurers may dispute a claim, the amount of coverage, or who is responsible.

The estate’s assets may also be relevant, depending on the facts and the rules that govern estates.

The terms of your policy control what it covers. W. Va. Code § 33-6-31 requires an insured who intends to rely on uninsured or underinsured coverage, if a lawsuit is filed against the owner or operator of an uninsured or underinsured motor vehicle, to have a copy of the summons and a copy of the complaint served on the insurance company issuing the policy, in the manner prescribed by law, as though the insurer were a named party defendant; the insurer then has the right to file pleadings and take other action allowable by law in the name of the owner, the operator, or both, or in its own name. The insurer is treated as though it were a named defendant.

Deadlines That May Still Apply

West Virginia generally allows two years to file many personal injury and wrongful death claims. Exceptions may apply. W. Va. Code § 55-2-12 sets a two-year period for actions for damages for personal injuries.

Under the general limitation for personal actions, a personal injury action must be brought within two years after the right to bring it has accrued, where no other limitation is otherwise prescribed (W. Va. Code § 55-2-12). The survival statute also ties the timing to the period that would have applied had the injured person lived.

The driver’s death can raise timing questions. The details of each case shape the answers, so treat filing deadlines as urgent. Missing one can end a claim.

When Another Party May Share Responsibility

Another party may share responsibility when their own conduct helped cause the crash. If another driver was at fault, that driver or the insurer may also be responsible.

West Virginia assigns fault by percentage. W. Va. Code § 55-7-13c says each defendant is generally liable only for its own share. An injured person’s own fault reduces recovery in proportion. It bars recovery only when it is greater than the combined fault of everyone else. W. Va. Code § 55-7-13c reads: “(c) Any fault chargeable to the plaintiff shall not bar recovery by the plaintiff unless the plaintiff’s fault is greater than the combined fault of all other persons responsible for the total amount of damages, if any, to be awarded.”

When a commercial vehicle is involved, more parties may be in the picture. W. Va. Code § 55-7-32 defines an employer defendant to include the vehicle’s owner, the operator’s employer, and any entity that holds legal control over the vehicle or its operator.

Several responsible parties can make the claim and the insurance picture more complex.

Evidence to Preserve Early

Save evidence early, because records can be lost or changed over time. Useful items often include:

• The crash report from the investigating agency
• Photos of the scene and the vehicles
• Names and phone numbers of witnesses
• Medical records and bills
• Records of missed work

Catastrophic brain and spinal cord injuries are documented through medical records. MedlinePlus notes that motor vehicle accidents are among the causes of spinal cord injury. These injuries may cause weakness, paralysis, and sensory loss. Your treating providers answer medical questions.

Driver conduct can matter too. The West Virginia Division of Motor Vehicles provides public information about distracted driving. The state’s load safety guidance explains that unsecured cargo can cause serious or catastrophic crashes.

If a family member is acting for an injured or deceased person, a simple written timeline of events and calls can help.

Talking Through Your Situation With the Firm

If a crash has left someone you love in intensive care, or a death has left your family with questions, you did not choose this. Deciding what to do next can feel overwhelming.

The firm handles car accident, truck accident, commercial vehicle, catastrophic injury, traumatic brain injury, spinal cord injury, and wrongful death claims across West Virginia. You can read more about traumatic brain injury, spinal cord injury, and wrongful death claims on our site.

If you’re trying to learn whether a claim may still move forward after the at-fault driver’s death, contact the firm to request a free case review of your situation.