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Filing A Claim Against A Deceased At-Fault Driver

Filing a Claim Against a Deceased at-Fault Driver

On behalf of | September 7, 2023. | Auto Accidents

The at-fault driver in a car accident does not always walk away uninjured from a car accident. On the contrary, they can often suffer as much or more than the other parties in an accident. In the most tragic circumstances, the at-fault driver can die from their injuries. In that kind of scenario, the other driver in an accident can be left in a perplexing situation. Fortunately, the surviving drivers are not simply left on the hook for the injuries they suffered. They can still file a claim with the deceased driver’s insurance or file a lawsuit against the deceased person’s estate.

Filing a Claim Against a Deceased at-Fault Driver

What to Know About Filing a Claim Against a Deceased At-Fault Driver

If you find yourself in this situation, there are several points to keep in mind as you try to recover compensation for your losses.

Point #1: The Deceased Driver Is Still Liable Under Virginia’s “Fault” System for Car Accidents

The first thing to be aware of before filing a claim is Virginia’s “fault” system. Virginia operates under an “at-fault” system for car accidents (as compared to being a “no-fault” state). This means that the person who is legally at fault for causing the accident is responsible for any of your damages. Assuming the at-fault driver has insurance, their insurance is always responsible for the damage, up to the policy limits. That means you can file a claim with the at-fault driver’s insurance company, even if the at-fault driver died in the accident. Similarly, if the deceased driver lacked sufficient insurance or had no insurance whatsoever, you still have the right to make an uninsured/underinsured motorist’s claim with your own insurance company. Their death will not affect your insurance company’s response to your claim.

Point #2: You Can Still Make a Claim Against the Deceased Driver’s Estate

Even if the deceased driver had insurance, it’s plausible their coverage is insufficient to compensate you for your losses. This may leave you unable to cope with mounting hospital bills and lost wages as you try to recover from your injuries. So what options do you have?

When people pass away, an outside party collects and consolidates their belongings. Collectively, this property is referred to as the deceased person’s “estate.” If the driver responsible for the accident is no longer living, you can file a claim against their estate. In this scenario, the law works virtually the same as it would if the at-fault driver were alive. All estates require a personal representative, and you will interact with this personal representative (or their legal counsel) as you come to a fair resolution. You may choose to either negotiate with the estate to reach a settlement or sue them in court, just as you would with the driver if they were alive. However, any successful claim will probably end up in probate court, a difficult and lengthy process.

Point #3: There Are Unique Legal Challenges to Overcome

While your rights to file a claim are essentially the same, there are still obstacles that you must face. For instance, the lack of testimony from an at-fault driver can actually make proving your claim more difficult. That’s primarily because the at-fault driver’s testimony would still be able to confirm some aspects of your claims even if they disagreed with your legal conclusions. Without their testimony, you must turn to other sources of testimony. Examples include eyewitnesses, photographic evidence, and expert witnesses.

How Long Do I Have to Act?

Virginia law establishes the time limit for initiating claims against a decedent’s estate. While the exact amount of time will vary based on certain factors, you will have at least one year from the decedent’s death to file a lawsuit. An experienced personal injury attorney can review your case and advise on exactly how long you have to file.

What If I Am Partially Responsible for the Accident?

Determining liability is often a complex process, especially if the deceased driver’s estate disputes liability. However, it is vital for you to clear your name of any responsibility. That’s because Virginia follows the rule of “pure contributory negligence.” Under this rule, a court may bar you from recovering any compensation if it finds you to be even slightly at fault for the accident. As a result, it becomes imperative to gather strong evidence that supports your claim of the deceased driver’s full liability.


Let The Law Firm of Carlton F. Bennett, PLLC, Help You Defend Your Rights

Filing an accident claim against a deceased at-fault driver is often both emotionally and legally challenging. It can be hard to deal with residual feelings of guilt and survivor syndrome while asserting your right to receive compensation for your losses. On top of that, Virginia’s laws on car accidents and its pure contributory negligence rule require a thorough understanding of the law. Consequently, you should consult a legal professional.

Here at The Law Firm of Carlton F. Bennett, PLLC, our Virginia Beach attorneys have decades of experience serving the Hampton Roads region. Mr. Bennett and our team prioritize compassionate and caring legal guidance. Our top goal is to help our clients move forward after life-altering events and recover what they deserve. We’ll delve deep to understand your unique situation so that we can provide tailored solutions that genuinely impact your life. Discover more about how our team can assist you by calling us today.

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Carlton F. Bennett Mr. Bennett is recognized as an expert in traumatic brain damage litigation, nursing home malpractice, and wrongful death cases. He has obtained numerous multi-million dollar settlements and verdicts for traumatic brain injury survivors, and other cases involving serious injuries.
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