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Newsworthy Verdict in Massachusetts Would Have Been a Defense Verdict in Virginia

Virginia liability crash

Last week in Massachusetts, a court awarded $32 million in a case in which a 43-year-old shopper was killed inside a convenience store when an 81-year-old driver crashed through the front wall of the store at high speed. The decedent’s family sued the driver and the convenience store chain.

It comes as no surprise that this extraordinarily high verdict would be newsworthy in any state, but a $32,000,000 verdict in a case like this is almost unimaginable in Virginia. The current record for a wrongful death verdict in Virginia is $15,000,000. I know, because I obtained it for a Burnett & Williams client in 2013.

This Massachusetts case is a good teaching vehicle to demonstrate the differences in the laws of many states relating to wrongful death claims. In Virginia, an identical 10-2 jury verdict for the plaintiff would be a defense verdict, a total loss for the plaintiff. This is so because Virginia (with seven-person civil juries) requires that verdicts be unanimous. The two dissenting jurors would have prevented a unanimous verdict in our Commonwealth.

One of the major factors in determining verdict amount is the economic loss that is permitted to be presented to the jury. In Virginia, to be able to present economic loss as an item of damages, the beneficiaries must prove that the decedent was providing economic support to them. Thus the ten adult children of a widowed brain surgeon who were each receiving $50,000 per year from their father before his death would be entitled to claim that amount for as many years as it could be shown that he would have paid it had he not died. On the other hand, had the same doctor with the same ten adult children died, but without any evidence of having paid them anything, they would not be entitled to claim any monetary loss as a result of his death. This is so because Virginia limits claims in wrongful death cases to the losses of the beneficiaries. Other states allow the decedent’s estate, separate from the beneficiaries, to claim expected life-time earnings without any showing that those earnings would have gone to his or her statutory beneficiaries.

Statutory beneficiaries in virtually all states are allowed to claim some form of what are called “solatium” damages. In Virginia, the jury instruction characterizes them as “any sorrow, mental anguish, and loss of solace by the beneficiaries. Solace may include society, companionship, comfort, guidance, kindly offices, and advice of the decedent.” In short, these are mental anguish damages. Even with very close relationships between the decedent and the beneficiaries, it is unusual for juries to award as much as $1,000,000 for such damages.

One of the best responses to this $32,000,000 verdict is to stay tuned. It is unimaginable that this case will not be appealed. Challenges will likely include whether the case ever should have gone to a jury, on the basis of the defendant store owner not having a legal obligation to place bollards or other protection against such accidents. It will also likely ask the court to reduce the verdict as excessive under a legal rule called remittitur, essentially a request to reduce the verdict because the jury acted improperly in some fashion. Lastly, several comments about the article online suggested that the plaintiff’s lawyers would be getting paid regardless of the outcome. This is highly unlikely as most personal injuries attorneys only get paid when they actually collect money for the plaintiff. In this case, it will certainly be a while before the attorneys are paid, and the amount will likely be considerably less than a third of $32,000,000.