Many people believe that survival actions and wrongful death claims are the same. They are not, although there are similarities. A survival action asks for damages the deceased would have been entitled to had they recovered from the accident. In a wrongful death lawsuit, the damages are awarded to the family for their losses, although the action is based on the viability of the decedent’s personal injury claim. To complicate matters further: your family, after losing a loved one, should be entitled to claim compensation for both actions.
As an example of what a survival action looks like, if a car accident victim survives for months immobilized and in constant pain, then upon their death from the injuries, the family can collect damages for the pain and suffering of their loved one prior to death. When considering survival actions, remember they apply to what happened to your loved one when they were alive, not what you lose because of their loss.
The longer the person survives after another party’s negligence causes them devastating harm, the more money the family is likely to recover in a survival action. This is based on how much the person suffers in the hours, days, or weeks after the incident but prior to death. Compensation for a survival action can include:
Recoverable losses in a survival action means looking at the same losses a plaintiff in a personal injury lawsuit would seek. What a plaintiff would be awarded if they lived and filed a personal injury lawsuit is what a family would be awarded in a survival action.
Survival actions allow certain persons to step into the shoes of the decedent whether they had begun a personal injury lawsuit or not. If they could have proved negligence, a family member is eligible to file, according to a particular order prescribed in Louisiana Civil Code Article 2315.1. The order is: the decedent’s spouse, children, parents, siblings, and grandparents. If no family members or beneficiaries survive the decedent, then the succession representative, often called the executor, can be appointed by the court. Survival actions must be filed within one year of the injured party’s death.
Distribution of proceeds from a survival action are dictated by the decedent’s will; or by Louisiana law if the injured person dies intestate. The attorneys at Kopfler and Hermann are well-aware that family members who are grieving the loss of a loved one will be even more stressed trying to determine whether they can file a survival action. Our experience in these matters lifts the burden from families
If the injured party planned to petition for compensation after someone else’s negligence caused their injuries, they would have to prove the elements of negligence, which also must be proved in a survival action. The plaintiff must show that the defendant had a duty to act reasonably, breached that duty, and caused an accident that injured the plaintiff. As an example, motorists have a duty to drive sober and within the speed limit. They breach that duty if they speed while drunk or fail to yield the right of way, et cetera.
Kopfler and Hermann’s wrongful death attorneys will scrutinize the evidence and build a case based on a survival action. Call now if your loved one died from injuries caused by someone else. We will fight the legal battle on your behalf.
