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Wrongful Death vs. Survival Actions

| Apr 18, 2016 | Firm News

When an individual dies as a result of another person’s negligence or reckless actions, his or her loved ones may recover compensation for their losses connected to the death. These losses can include the cost of the victim’s funeral, the cost of the victim’s medical care between the accident and his or her passing, and their own losses of the victim’s financial contributions to the household and the inheritance that they would have received if the victim had not died prematurely. Whether you can seek these types of damages through a wrongful death claim or a survival action depends on the circumstances of your loved one’s death. In fact, the type of claim you are permitted to file and thus, the types of compensation you are entitled to receive, is determined by certain key factors present in your case. Speak with an experienced California wrongful death attorney to determine which type of claim you may file and how to pursue it.

Who Can File a Wrongful Death Claim?

Under California law, a victim’s spouse, child or any other dependent, or a representative of the victim’s estate may file a wrongful death claim. Through this type of claim, a victim’s loved one may receive compensation for the following losses:

  • Funeral expenses;
  • Loss of the deceased individual’s income;
  • Loss of the victim’s companionship;
  • Loss of the non-financial contributions the deceased made to his or her household, such as housework; and
  • The loss of a sexual relationship with the deceased, in the case of a spouse.

What cannot be recovered through a wrongful death claim, however, is punitive damages if the victim was killed as a result of another party’s intentional malice.

Who Can File a Survival Action?

A survival action is a little bit different from a wrongful death claim for a few reasons. One of the ways they are different is who is able to file a survival action. This type of claim may only be brought by a personal representative of the victim’s estate or, if he or she did not appoint such a representative, his or her successor-in-interest. This refers to any individual who is the successor of the deceased’s property or assets, such as his or her business.

Another key difference between survival actions and wrongful death claims is when the victim died. If the victim did not die immediately as a result of his or her accident and instead lived even for a short period of time, a survival action could be a better choice. It is still possible to file a wrongful death claim if a victim was not killed instantly, which is why it is important that any individual considering filing this type of claim speak with an experienced attorney to determine which type of claim is more appropriate for his or her case.

With a survival action, the claimant may seek compensation for damages the victim suffered before his or her death. This can include the following:

  • Medical bills;
  • Lost wages; and
  • Punitive damages.

Basically, a survival action allows an individual to take on the role of the deceased and seek compensation for the damages that the deceased could have sought if he or she had survived the accident. One thing that a claimant cannot recover through a survival action, however, is compensation for pain and suffering. Pain and suffering refers to the intangible damages the victim suffered, such as scarring, the need for psychological counseling to work through mental health problems after an accident, and over-the-counter pain medication.

Work with a San Diego Wrongful Death Attorney

Losing a loved one is never easy. When the loss of your loved one comes with a significant financial burden, that loss can become even more overwhelming for you and your family. Speak with an experienced San Diego wrongful death attorney to determine whether a wrongful death claim or a survival action is the right course of action for you. Our team at Martinez & Schill LLP can provide you with the compassionate legal guidance you need during this difficult time. Contact our firm today to schedule your initial legal consultation with us and move forward with your claim.