Estate of Helmick by Fox v. Martin
In Estate of Helmick by Fox v. Martin, 188 W. Va. 559, 425 S.E.2d 235 (1992), the Court concluded that under the wrongful death act a decedent's beneficiaries could recover damages for a decedent's pain and suffering, if the decedent initiated a personal injury action prior to his or her death.
The Court left unanswered the question raised by the parties in this case, stating that "we need not resolve at this time the remaining question of whether pain and suffering is recoverable where the action is not filed until after the decedent's death." 188 W. Va. at 563 n. 10, 425 S.E.2d at 239 n. 10.
The Court concluded that "West Virginia Code 55-7-8 specifically provides that a recovery shall be had for damages such as pain and suffering which are not otherwise provided for under the wrongful death act," when the decedent has initiated an action for those damages prior to death. 188 W. Va. at 563, 425 S.E.2d at 239.
The Court held in Syllabus Point 3 of Helmick that:
"West Virginia Code 55-7-8 (1989) authorizes the decedent's beneficiaries to recover damages for a decedent's pain and suffering incurred between the time of 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 West Virginia Code 55-7-5 and 55-7-6 (1989)."