A survival action is very distinct from a wrongful death action. While they typically involve the same parties, and usually the wrongful death attorney brings both at the same time, they provide different rights and remedies under the law. In this article, we will address some of the questions we regularly see from clients in wrongful death actions. In particular, we will discuss the main differences between a survival action and a wrongful death action. We will also discuss the types of damages you can seek in a survivor action and who has the legal right to bring a survival action. Lastly, we will cover whether you can get pain and suffering in a survival action and the statute of limitations to bring a survival action.
The conceptual difference between a survival action and a wrongful death action is that a survival action is for losses that occurred after the accident and before death. A wrongful death action is for losses that occurred after death. The remedies in a survival action and a wrongful death action do not overlap, but rather work in tandem.
Stated somewhat differently, had the victim not died but rather recovered, a survival action is for many of the losses that they would have had from the accident. As discussed below, unfortunately, it does cover all losses.
If someone dies immediately from a wrongful action, generally, there are no damages that can be recovered in a survival action. Survival actions primarily deal with damages that occur between the time of the accident and the death.
Suppose someone is involved in an accident and is taken to the hospital where they are treated, and unfortunately, do not recover. In that case, a survival action permits the recovery and repayment of the hospital and related medical bills.
Likewise, for someone that was employed or employable prior to the wrongful action, and lost income prior to their wrongful death from the accident, the lost wages would be compensable as well.
Pragmatically, a survival action is brought on behalf of the decedent for the decedent’s losses. Consequently, the laws about who can bring a survival action generally mirror those who have the right to bring probate. Anyone who was entitled to inherit from the estate potentially has the legal right to bring the survival action. The exact mechanisms and procedures to bring the action do vary, however, so if you think you might have been entitled to an inheritance, you should discuss it with a wrongful death attorney.
As a general rule, pain and suffering is not allowed as a component of a survival action. The law is very frustrating in this regard and is generally quoted as the right to pain and suffering died with the victim.
There are, however, some laws that exist that create exceptions to this rule. The most notable is the Elder Abuse & Dependent Adult Civil Protection Act. This legislation’s public policy objectives have enlarged some of the rights that heirs may have in a survival action. If you suffered the loss of an elder or dependent adult from abuse, you should contact an Eason and Tambornini wrongful death attorney for a more thorough analysis of the rights that might exist.
People should also check with the life insurance policy to determine if there was an accidental death benefit rider. Many of these provisions provide for what is now as “double indemnity or “triple indemnity.” In other words, if the policy has these provisions, and an accident caused the death, the policy may pay double or potentially triple the normal face amount.
The statute of limitations for a survival action is nearly identical to the statute of limitations for a personal injury action had the individual survived. Traditionally, the time period to bring in action starts at the time of the accident, not at the time of the death. The time period for many actions is two years; however, if the death was caused by the malpractice of a professional, such as a doctor, it might only be one year. Additionally, actions against government entities are often reduced to only six months!
The statute of limitations has many exceptions, and most of them are not helpful. If you suffered the loss of a loved one, you should speak with an Eason and Tambornini wrongful death attorney as soon as reasonably possible to avoid not only the statute of limitations from expiring but to make sure that evidence isn’t lost or tampered with in the interim.
What can you do?
As you can see from above, a survivor action is very distinct from a wrongful death action. The benefits in a survival action are not intended to be duplicative of a wrongful death action, but rather to cover separate items. The parties to wrongful death actions and survival actions are usually the same, and thus wrongful death attorneys usually handle both at the same time. However, the statute of limitations to bring a survival action usually expires before a wrongful death action, so time is essential.
If you believe you may have rights under a wrongful death action or a survival action, we encourage you to call an Eason and Tambornini wrongful death attorney in Sacramento for a free consultation.
