Wrongful Death Case Results in $4.7 Million Settlement

At Breit Biniazan, we’re pleased to announce that our partner Jeffrey Breit helped secure major financial recovery for a family dealing with the devastating loss of their loved one in an industrial accident.

In the case in question, the deceased victim had been a pipe fitter working at a South Virginia paper manufacturing plant. When the plant owner decided to convert it into a tissue mill, the deceased’s employer was hired to complete the project. On October 5th, 2012, the deceased victim was asked to move a pipe for retrofitting purposes and was struck by an overhead crane operated by another contractor’s employee. After the victim’s untimely death, the surviving family members filed a wrongful death claim against the owner of the plant, as well as the contractor supervising the conversion and the contractor whose employee struck the deceased.

With the news of this $4.7 million settlement, the deceased victim’s family may be able to find some measure of comfort and peace of mind, in the wake of their tremendous loss.

How Do Personal Injury Lawyers Get Paid?

You may have wondered how personal injury plaintiffs can afford to hire attorneys when they’re already facing medical bills, lost wages, and other injury-related expenses.

Because of the financial impact that a physical injury can have on a plaintiff, a traditional dollars-per-hour fee arrangement just doesn’t make sense.

Instead, personal injury attorneys are paid on a contingency fee basis that ensures that no money changes hands until the case is resolved in the client’s favor.

Below we discuss the different types of contingency fee agreements attorneys use and how they can benefit personal injury clients.

What Is a Contingency Fee?

As the name implies, a contingency fee is a fee that’s contingent on a positive outcome for the client.

Generally, this means that if the client wins, the attorney recovers their contingent fee from the settlement or legal judgment. If the client doesn’t win, the attorney charges nothing except expenses agreed to in advance.
What kinds of lawyers use contingency fees?

Contingency fee agreements are common in cases involving:

It’s important to note that contingency fees generally only apply to the plaintiff’s side of litigation.

Someone defending against a personal injury, wrongful death, or medical malpractice claim will usually need to pay their attorney on an hourly or retainer basis.

In some cases, insurance may cover these defense costs up to a certain threshold; after that, the defendant is responsible for any remaining costs.

What types of contingency fee agreements are available?

There are several common types of contingency fee agreements.

Traditional contingent fees

These fees are a flat percentage of the plaintiff’s total recovery—often between 25% and 33%. For example, if a plaintiff’s case settles for $100,000 and the contingency fee agreement provides for a 25% fee, the plaintiff will retain $75,000 of the total.

Sometimes these fees will specifically include or exclude certain costs, like costs your lawyer incurs during discovery or filing fees. Costs that are excluded from the fee will be separately deducted from the amount recovered.

Mixed hourly and contingent fees

Here, the attorney will receive a significantly reduced hourly rate even if the plaintiff doesn’t recover any damages. However, if the attorney wins or settles the case, they may receive an additional “bonus”—either a dollar amount or a percentage of the total amount recovered—that makes up the bulk of the fee.

Sliding scale contingent fees

In this case, the fee percentage is on a sliding scale to account for the complexity of the litigation. The longer a lawsuit goes on, the more fees are generated—for example, an attorney may charge a fee of 20% if a case is settled before trial, 30% if it settles after a complaint is filed, or 40% if it goes all the way through trial.

These fees and the percentage charged are often negotiable, and many personal injury attorneys will use different fee arrangements based on the type of case, the client’s needs, and other case-related factors.

What is the percentage charged under a contingency fee agreement?

Generally, contingency fees fall between 25% and 40% of the amount recovered, with many fees set at 33% (or 1/3rd of the recovery).

Some states have laws that cap contingency fees at a certain percentage. However, Virginia uses a “reasonableness” standard that will generally uphold any fee agreement that is within this range and doesn’t otherwise violate public policy.

How does a contingency fee treat additional costs?

A straight contingency fee agreement will include costs in the fee—but for some cases, attorneys may bill costs separately.

For example, a contingency fee agreement may provide for a 25% fee plus the first $10,000 in non-fee-related costs. If the plaintiff recovers $500,000 and the attorney incurs $25,000 in costs while litigating the case, the attorney will recover a total of $135,000—$125,000 as the contingent fee and $10,000 in costs.

Benefits of Contingency Fee Arrangements

Contingency fees can benefit clients in several important ways.

You know your case has a good shot at success.

Put simply, lawyers working under contingency fee agreements don’t want to take cases they don’t think they’ll win. If an attorney takes your case under such an agreement, this means you have a high likelihood of settling or winning your case.

You don’t need to fee-shop among attorneys.

When you’re looking for someone to represent you in a personal injury case, you aren’t likely to have the time or energy to seek out multiple quotes to find the most affordable option. What’s more, when it comes to fighting for your rights in court, you also want the best representation available.

A contingent fee means you don’t have to settle for a lawyer you can “afford.” Instead, you can select the best attorney for your case or situation without having to pay more for higher-quality representation. This puts a tremendous amount of power back into the hands of those who are injured.

A contingency fee means you can select the best attorney for your case without having to pay more for higher-quality representation.

You don’t need to worry about how to pay for legal advice.

If you’ve been injured due to another person’s negligent or reckless behavior, you’re probably facing medical bills, unpaid time off work, or even a permanent disability. Meanwhile, many wrongful death cases sadly involve the death of a beloved breadwinner, putting his or her loved ones under financial strain.

A contingency fee ensures that you’ll only pay legal fees if you win your case, whether through settlement or a court judgment. This can relieve some of the financial pressure you may be feeling and allow you to focus on what’s important—recovery and moving forward.

At Breit Biniazan, our skilled personal injury attorneys only recover if you win. With a proven record of success in even the most complex personal injury, medical malpractice, and wrongful death cases, we’ll give your case the attention it deserves. Give us a call at (855) 659-4457 or contact us online to schedule a private consultation.

Wrongful Death: Naming the Proper Personal Representative of the Estate: A Trap for the Unwary

By filing a wrongful death lawsuit, family members can seek compensation on behalf of a loved one who died as a result of someone else’s recklessness or negligence.

Under Virginia law, it’s essential to name the proper personal representative of a wrongful death estate. Naming the wrong representative can be a costly mistake—not only can it nullify the lawsuit, but it can also waste valuable time.

Below, we discuss:

Who Can Bring a Wrongful Death Lawsuit in Virginia?

According to Virginia law, a wrongful death lawsuit must be brought by and in the name of the deceased person’s personal representative.

This means that whoever is selected as personal representative of an estate must be:

A personal representative can be a qualified family member, a named executor, or a neutral third party, like an attorney or guardian ad litem.

If the deceased person was a minor, the custodial parent may be named as a personal representative. However, the parent can waive their right to administer their child’s estate in favor of any other designated person.

Important: The personal representative isn’t necessarily the same person who will receive wrongful death damages.

For example, an attorney may be appointed as a personal representative while the deceased person’s surviving spouse will receive any wrongful death damages recovered by the estate.

Who Can Recover Wrongful Death Damages?

Wrongful death damages go to the decedent’s

If the decedent regularly provided financial support to their parents during the 12 months before their death, these parents may also qualify to recover wrongful death damages.

If the decedent has no surviving spouse or children, wrongful death damages will go to the decedent’s

In many respects, the distribution of wrongful death damages is similar to how assets are distributed when someone dies without a will.

What Can Go Wrong if a Non-Qualified Personal Representative Sues for Wrongful Death in Virginia?

If a deceased person’s will names a non-qualified person as a personal representative, things can become complicated. And making even a single misstep at this stage can cause a wrongful death lawsuit to be dismissed later.

Appointing someone as an executor or personal representative doesn’t necessarily qualify that person to bring a wrongful death lawsuit.

Instead, the personal representative will either need to

If the personal representative lives outside Virginia, or otherwise can’t become qualified, any legal documents they file on behalf of the estate, including a wrongful death complaint, become null and void.

Worst of all, if this mistake isn’t discovered until after the statute of limitations has passed, the case will be dismissed.

In Virginia, personal representatives have two years from the date of death to bring a wrongful death lawsuit. Missing this deadline, even by just a day, will prevent the estate from ever recovering any wrongful death damages.

What Happens if the Decedent Didn’t Live in Virginia?

While a personal representative suing in Virginia must be qualified in Virginia, the same isn’t true of the decedent themselves.

In other words, it’s common for Virginia courts to decide wrongful death lawsuits filed on behalf of out-of-state decedents.

But again, the personal representative must be qualified to serve in Virginia. Even if the personal representative is qualified to serve in the decedent’s home state, they can’t file a wrongful death lawsuit in Virginia until they’re qualified by a Virginia court.

This means that relying on a personal representative’s out-of-state qualification can often become a trap for the unwary.

In Closing: Talk to a Virginia Wrongful Death Attorney

If a loved one has been killed by another person’s negligence, you have the right to recover damages from the person or people responsible.

But to recover these damages, it’s crucial that your attorney knows exactly how to bring a wrongful death lawsuit under Virginia law. The last thing you want is to have your claim dismissed on what seems like a technicality.

Get in touch with us today to get started on identifying and appointing a qualified personal representative. We’ve handled many wrongful death cases and are here to give you the legal support you need.

Police announce they have a suspecting custody in the death investigation of Sierra Jenkins

A statement on behalf of Sierra Jenkins’s family in response to the news that an individual has been taken into custody in connection with the investigation into her death.

 “The family of Sierra Jenkins is encouraged by the news that law enforcement has a suspect in custody who is believed to be responsible for Sierra’s murder. However, we remain disappointed with the lack of information that has been available to the family and the public as to the circumstances that led to Sierra’s untimely death and others who may also be responsible. This community deserves answers and more information to better inform their decisions for the safety of themselves and their family.”

Any media inquiries regarding this case can be directed to Breit Biniazan at (855) 659-4457.

The Value of a Wrongful Death Case

When a loved one dies as the result of someone else’s negligence, it can be hard to know what to do next. Filing a wrongful death lawsuit may be the best way to get justice for your loved one and ensure that their death doesn’t go unpunished.

What is a wrongful death case?

A wrongful death case is a civil action brought by certain surviving family members against another party who is believed to be responsible for the decedent’s death. The purpose of such a suit is to recover damages, which may include monetary compensation for the loss of love and companionship, as well as funeral and burial expenses.

In some cases, punitive damages may also be awarded in order to punish the defendants and deter others from engaging in similar conduct. In order to succeed in a wrongful death action, the plaintiffs must prove that the defendants were negligent or otherwise at fault for the decedent’s death. This can be a difficult burden to meet, but with the help of an experienced attorney, it may be possible to obtain justice for your loved one.

What is the value of a wrongful death case?

The loss of a loved one is always difficult to cope with, but it can be especially hard when the death was caused by someone else’s negligence. If you have lost a family member due to someone else’s carelessness, you may be able to file a wrongful death lawsuit. While no amount of money can ever truly compensate you for your loss, a successful lawsuit can help to hold the responsible party accountable and provide some financial relief during this difficult time.

In addition, a wrongful death suit can also help to deter others from engaging in similar negligent behavior in the future. For all of these reasons, wrongful death lawsuits play an important role in our justice system.

What are the different types of damages that can be recovered in a wrongful death case?

There are many different types of damages that can be recovered in a wrongful death case. The most common type of damages is economic damages, which includes things like medical expenses, funeral and burial expenses, lost wages, and lost benefits. Non-economic damages, such as pain and suffering and loss of companionship, are also commonly awarded in wrongful death cases.

 In some cases, punitive damages may also be awarded in order to punish the person responsible for the death. Each state has its own rules about what types of damages can be recovered in a wrongful death case, so it is important to consult with an experienced attorney to learn more about what might be available in your particular case.

How do you prove that the death was caused by the negligence of another

In order to prove that someone else’s negligence caused a death, it is necessary to show that the death would not have occurred but for the negligence. In other words, it must be shown that negligence was the direct and proximate cause of the death. This can be difficult to do, as there are often many factors that contribute to a person’s death. 

However, if it can be proven that negligence was a substantial factor in causing the death, then liability will usually be imposed. For example, if a driver runs a red light and hits a pedestrian, causing the pedestrian to die, it will be clear that the driver’s negligence caused the death. However, if the pedestrian was already sick and would have died even without being hit by the car, then it may be more difficult to prove that the driver’s negligence caused the death. In such cases, expert testimony may be necessary to establish causation.

What are some common defenses to a wrongful death claim

One such defense is that the victim was partially responsible for their own death. For example, if the victim was not wearing a seatbelt at the time of the accident, the defendant may argue that they would not have been killed if they had been properly restrained. 

Another common defense is that the victim did not die immediately as a result of the accident, but succumbed to their injuries at a later date. In this case, the defendant may argue that they are not responsible for the victim’s death. While these are just two possible defenses, it’s important to be aware of them before you proceed with a wrongful death claim. Otherwise, you may find yourself at a disadvantage when it comes time to assert your rights in court.

How long do you have to file a wrongful death claim?

If you find yourself in this situation, you may be wondering how long you have to file a wrongful death claim. The answer will depend on the laws of your state, but in general, you will have two years from the date of your loved one’s death to take legal action.

 It is important to note that this time frame may be different if the death was caused by medical malpractice or if the defendant is a government entity. However, no matter what the circumstances are, it is important to speak with an experienced wrongful death attorney as soon as possible so that you can protect your rights and get the compensation you deserve.

Who can file a wrongful death claim?

After the death of a loved one, no amount of money can truly compensate for the loss. However, filing a wrongful death claim can help to ease the financial burden and hold the responsible party accountable for their actions. Under most state laws, the surviving spouse, children, or parents of the deceased are eligible to file a claim within two years of the loss. In some cases, other family members may also be able to pursue damages. 

An experienced wrongful death attorney can help you determine who is eligible to file a claim and what type of damages may be available. While no amount of money can bring back a lost loved one, pursuing a wrongful death claim can help to provide closure and justice.

What are some examples of wrongful death cases?

In order for a case to be considered wrongful death, there must be evidence that the death would not have occurred but for the actions of the defendant. Some of the most common examples of wrongful death cases involve car accidents, medical negligence, and workplace accidents. 

In each of these cases, the victim’s family may be able to file a lawsuit against the party responsible for their loved one’s death. While no amount of money can ever truly compensate for the loss of a life, pursuing a wrongful death claim can help bring a sense of justice to the victim’s family and hold the responsible party accountable for their actions.

What is the average settlement for a wrongful death case?

Wrongful death settlements vary based on the circumstances of the case. Fault, eyewitness testimony, and the age, health, and earnings of the deceased are all factors that can affect the amount of damages that are awarded. In general, however, wrongful death settlements fall into one of three categories: medical bills and funeral expenses, lost wages and benefits, and pain and suffering. Damages for lost wages and benefits are typically calculated based on the victim’s life expectancy and earnings potential. Pain and suffering damages are intended to compensate the victim’s family for their loss.

These damages can be awarded even if the victim did not experience physical pain before their death. While there is no formula for calculating wrongful death damages, a knowledgeable attorney can help to ensure that you receive the compensation you deserve.

Contact the expert wrongful death attorneys at Breit Biniazan for professional legal representation.

Are Wrongful Death Settlements Taxable?

After losing a loved one, compensation in the form of a wrongful death settlement might not heal your wounds, but it may help you move forward and rebuild your life. While taxes are likely far from your mind at such a time, it’s important to consider the implications a wrongful death settlement may have on your taxes.

There are general rules regarding taxable and non-taxable settlements, which we’ve outlined below. Still, when moving forward with a wrongful death settlement in Virginia, we always recommend contacting a law office like Breit Biniazan to help you understand the often confusing regulations and laws around wrongful death settlements and their tax implications. At Breit Biniazan, we navigate regulations, laws and tax implications so that our clients can focus on what matters most: taking care of themselves. 

Types of Damages that are Awarded

There are two types of awards offered in wrongful death cases — punitive and compensatory — that are taxed differently.  

Compensatory awards are paid by the plaintiff and are intended to, as the name suggests, compensate the victim for their losses. Because compensatory awards are designed to bring justice to the victims who were wronged, they are typically not taxed by the IRS.

Punitive awards, on the other hand, are designed to punish the liable party and ensure the damage isn’t done again, therefore protecting other parties. Unlike compensatory awards, punitive awards are not intended to provide for the victim’s losses, and therefore may be subject to taxation.

While punitive awards are usually taxable and compensatory awards are not, there are exceptions to these rules, which is why it’s important to recruit the help of a lawyer in wrongful death cases in Virginia.

Non-Taxable Portions of a Settlement

While each settlement is unique, there are different portions of the settlement that may be taxable or non-taxable according to the IRS. That’s why it’s important to request a detailed settlement agreement so that you can easily identify which aspects of the settlement may or may not be subject to taxation.

Parts of a wrongful death award that are always tax-free include:

Taxable Portions of a Settlement

While most compensation from a wrongful death settlement is not considered income by the IRS, and is therefore not taxable, there are exceptions. Parts of a settlement that may be subject to taxation include:

The Complexity of Wrongful Death Claims

In general, wrongful death settlements provide greater compensation for victims and are largely non-taxable. However, as you may be filing multiple claims against the defendant in addition to a wrongful death claim, those settlements will come with different awards and taxation obligations. That’s why it’s important to explicitly determine via a settlement agreement how much is being paid for each element of each claim. This ensures you do not pay taxes for non-taxable compensation or vice versa.

As you recover from the loss of a loved one, you will have enough to consider—understanding tax law shouldn’t be one of them. Our experienced lawyers will fight for you to receive the compensation you deserve, but we’re also dedicated to helping our clients long after their case is closed, including understanding the tax implications of their settlement. Our attorneys in Virginia Beach and Richmond have helped hundreds of clients navigate the complicated consequences of a wrongful death suit, and we can do the same for your case.  Feel free to contact us if you have any questions.