Joseph Richardson, Personal Representative of the Estate of Richard Walter Richardson v. George Kennedy, M.D., and Charles Town General Hospital, Inc., dba Jefferson Memorial Hospital, No. 22779 (W. Va. July 5, 1996) (Recht, J.):
Reversing the dismissal of a wrongful death action because the decedent's estate had been closed, the Court held that a personal representative may be, in fact, a nominal party in a wrongful death action, but is nevertheless the real party in interest, under law, as mandated by W. Va. Code § 55-7-6.
Kenneth Farley, as Administrator of the Estate of Baby Farley, an unborn child v. Billy R. Sartin and Lee Sartin Trucking Company, Inc., No. 22797 (W. Va. December 13, 1995) (Cleckley, J.): 195 W.Va. 671, 466 S.E.2d 522:
Reversing an award of summary judgment to the defendants in an action brought by the father of a 18-22 week old, nonviable, unborn child, whose mother was killed in an automobile accident, the Court held that (1) a tortious injury suffered by a nonviable child who is subsequently born alive is compensable and (2) the term "person," as used in W. Va. Code §§ 55-7-5 and -6, our wrongful death statutes, encompasses a nonviable, unborn child.
Pamela J. Voelker, Administratrix of the Estate of Blake Andrew Weisenburg v. The Frederick Business Properties Company and Vincent Joseph Root, Sr., No. 22865 (W. Va. November 17, 1995) (McHugh, C.J.): 195 W.Va. 246, 465 S.E.2d 246:
Where evidence was admitted regarding a mother/administratrix's methods of disciplining decedent child, failure to accompany the decedent child to his bus stop where he was killed, and use of illicit drugs in the decedent child's presence, the Court affirmed a defense verdict in a wrongful death case, holding that (1) evidence of a beneficiary's relationship with the decedent may be admitted into evidence for purposes of determining damages in a wrongful death action pursuant to W. Va. Code § 55-7-6(c)(1) which provides for recovery of damages for "[s]orrow, mental anguish, solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent;" (2) whether evidence is relevant under R. Evid. 401 and 402 in determining damages in a wrongful death case and whether its probative value is outweighed by the danger of unfair prejudice pursuant to R. Evid. 403 must be determined on a case-by-case basis; and (3) a trial court's ruling on the admissibility of damages evidence in a wrongful death case will not be disturbed on appeal in the absence of an abuse of discretion.
Estate of Harry Melvin Helmick, by Goldie M. Fox, Executrix of the Estate of Harry Melvin Helmick v. Carl Martin, II; Ace Tank Rental, Inc.; Virgie Wamsley, Hayward Harold Martin and Dorothy Casada, d/b/a Our Place Diner, No. 21249 (W. Va. December 18, 1992) (Workman, J.): 188 W.Va. 559, 425 S.E.2d 235:
Where decedent's estate sought to recover for his pain and suffering prior to death, the Court held W. Va. Code § 55-7-8 authorizes a decedent's beneficiaries to recover damages for a decedent's pain and suffering incurred between the time of the injury and the time of death where the decedent had instituted an action for personal injury prior to his death and the action was revived and amended pursuant to W. Va. Code §§ 55-7-8 and 55-7-6.
Jacqueline White , Administratrix of the Estate of Andi D. White v. Kevin M. Gosiene and Ted A. White, No. 20656 (W. Va. June 12, 1992) (Miller, J.): 187 W.Va. 576, 420 S.E.2d 567:
Rejecting the claims of a mother that the father should not share in the proceeds of a wrongful death award because he had abandoned child whose death resulted in award, the Court held that, in the absence of a statute to the contrary, a parent who abandons a child is not precluded from recovering or sharing in a wrongful death recovery where the wrongful death act mandates distribution in accordance with the laws of intestate succession. This case was litigated under W. Va. Code § 55-7-6, which was later amended in 1992.
James Arnold and Rebecca Paugh, personal representatives of the Estate of Jack Turek, deceased; Charles Arnold and Paula Arnold, guardians of Heidi Turek, an infant/incompetent; and Robert Patrick Arnold, Committee for Frances Arnold (Turek) v. Heidi L. Turek, an infant/incompetent; and Frances V. Turek, a person unable to manage her business affairs; Diane Potter and Rosalie Darby; said persons being the heirs of law of Jack Turek, No. 19856 (W. Va. July 3, 1991) (Miller, C.J.): 185 W.Va. 400, 407 S.E.2d 706:
In a case interpreting 1989 changes to the wrongful death statute, the Court (1) the net proceeds of a wrongful death award, in the absence of a written agreement by all of the eligible beneficiaries, must be distributed in accordance with the decedent's will or the laws of the descent and distribution; (2) in calculating the net proceeds of a wrongful death award, amounts for reasonable funeral, hospital, medical, and other expenses must first be deducted; (3) the wrongful death statute in effect on the date of the decedent's death will control all aspects of the distribution of a wrongful death award; and (4) all eligible beneficiaries may, by written agreement, compromise a wrongful death claim and allocate the proceeds without regard to the decedent's will or the laws of descent and distribution.
Roy Lee McClure and Mary Frances McClure, his wife v. Lu Ann Dotson and Lu Ann Dotson McClure, Administratrix of the Estate of James Edward McClure, and Kansas City Life Company, Inc., a corporation, No. 19777 (W. Va. March 15, 1991) (Miller, C.J.): 184 W.Va. 649, 403 S.E.2d 197:
Where decedent's parents sought to disqualify daughter-in-law, whom they suspected was responsible for their son's death, from administering their son's estate, the Court held that, under our wrongful death statute, the personal representative has a fiduciary obligation to the beneficiaries of the deceased, and that where it is shown that the personal representative has acted in violation of his or her fiduciary duties, he or she may be removed for cause.
Casey Jordan v. Allstate Insurance Co., et al., No. 19669 (W. Va. March 14, 1991) (Neely, J.): 184 W.Va. 678, 403 S.E.2d 421:
Where summary proceedings were not conducted in connection with the settlement of a wrongful death action arising from the death of a minor sibling's brother, the Court reversed, holding that the claim of a minor sibling of a victim of a wrongful death cannot be compromised without court approval. The Court further held, however, that when the administrator of a wrongful death victim's estate settles a claim with the tortfeasor's insurance carrier, but fails to secure court approval, a minor's primary cause of action is against the administrator, and not the insurance carrier. Only if the administrator is insolvent, the Court held, would the insurance carrier be secondarily liable.
Ruth Jane Miller, Administratrix of the Estate of Misty M. Miller v. E. S. Romero, M.D., No. 20196 (W. Va. December 19, 1991) (Brotherton, J.): 186 W.Va. 523, 413 S.E.2d 178:
Where physician allegedly told plaintiff that her daughter's death was "God's will," failed to explain problems with her daughter's medication, and paid part of the funeral expenses in an effort to ingratiate himself with her family, the Court held that the 2-year wrongful death statute of limitations may be extended when evidence is presented of fraud, misrepresentation, or concealment of the material facts surrounding the death.