Survival Action vs. Wrongful Death

Did you know that every year over 40,000 Americans lose their lives in motor vehicle accidents? California makes up around 10% of these traffic fatalities.

If you have recently lost a loved one in an automobile accident, you can file a wrongful death lawsuit on their behalf if you believe the death was the result of someone else’s negligent or intentional act. 

Depending on the circumstances, your claim could include a survival action. Wrongful death lawsuits and survival action claims can be separate or combined into one claim.  An experienced wrongful death attorney can access your claim and help you through this process. Here is a look into how these claims differ and when they are applied following the passing of a loved one. 

What Is a Wrongful Death Lawsuit?

Wrongful death is defined as the death of a person caused by the wrongful act or neglect of another. There are many different types of accidents that can lead to wrongful death claims, such as automobile accidents and medical malpractice. After such a tragedy, the surviving family members can file a wrongful death lawsuit to compensate for their losses. This type of claim is usually filed by the deceased’s spouse or partner. Other family members such as children, grandchildren, and parents can also file a claim.

The amount of compensation varies according to each claim. Generally, they include:

1. Burial and funeral expenses
2. The future earnings of the deceased, had they not passed away
3. Loss of love, companionship, comfort, care, assistance, protection, affection, society, and moral support by deceased
4. Loss of deceased’s training and guidance 

By consulting with a wrongful death lawyer they can advise you on the value of your claim. 

What Is a Survival Action?

To understand this type of claim, imagine that the deceased had not passed away. If they were still alive, they would be eligible to claim damages from the person responsible for causing the accident. However, if legal action is not taken before their passing, the surviving family members may not be able to recover damages. 

California allows an exception for this law under the Code of Civil Procedure 377.30, allowing the right to sue is “survived” after death. A survival action does not directly compensate the family of the deceased. It is a claim made by a representative of the deceased estate. Essentially this means that the deceased person’s estate can claim damages on their behalf.

These claims usually occur when there was an extended period of time between the accident and the death. In situations where the wrongful action resulted in immediate death, a survival action is unlikely.

Survival action claims center on the damages involved after the accident but before the death occurred. As long as there is a period of time when the victim suffered, physically and financially, then a survival claim is possible.

This time period can be as brief as a few hours. Courts in California have allowed survival action claims due to damage to personal property and clothing. 

The compensation involved in a survival action includes:

1. Medical bills that incurred as a result of the accident
2. Damages due to pain and suffering of the victim
3. Loss of earnings during the period between the accident and death
4. Damages to personal property

If a survival action claim is successful, the compensation is paid to the deceased’s estate. Survival action is complicated and requires the expertise of an experienced wrongful death attorney.

How Wrongful Death Lawsuits Differ From Survival Action

One of the biggest differences between a wrongful death claim and a survival action is who can file the claim. A member of the deceased person’s family must make a wrongful death claim. In contrast, a representative of the deceased’s estate must file a survival action. It is possible for this representative to be a member of the family. However, there is no requirement for the estate representative to be related the deceased. This representative can be a lawyer or an accountant. In other cases, they are friends or business partners who have been specifically named in the will of the deceased.

The second significant difference is that wrongful death claims revolve around the damages suffered by the surviving family members. Survival actions focus on the suffering and losses experienced by the victim of the accident. This means that successful survival actions compensate the estate of the deceased. This is different from a successful wrongful death claim where compensation is for the surviving family members.

A third difference is that California allows the representative of the deceased’s estate to claim punitive damages. This type of compensation punishes the person responsible for the accident. They act as a means of reforming and deterring the defendant from repeating their negligent behavior in the future.

It is not possible to recover any punitive damages in a wrongful death lawsuit. This makes survival actions a powerful way to claim extensive damages if the wrongful action was deliberately intended to cause harm.

Statute of Limitations

A wrongful death lawsuit must be filed within two years from the date of the death. In contrast, the estate must file a survival action two years from the date of the injury or six months after the death, whichever comes later. 

Do You Need to File a Wrongful Death Lawsuit?

Do you suspect that your loved one passed away due to someone’s negligent behavior? If so, you may be able to pursue justice on their behalf. 

The Law Offices of Daniel Kim specializes in personal injury cases surrounding motor vehicle accidents. Our law firm has the expertise and the experience to help with your wrongful death claim. To learn more, schedule a free consultation today.