There is a substantial difference between a wrongful death lawsuit and a survival action. The two differ at their core. A wrongful death lawsuit provides the family with compensation for their loss due to a loved one’s death. A survival action does not compensate the family for their loss but instead compensates the deceased person’s estate for the decedent’s loss before their death. Let’s look at the two types of claims, how they differ and how an attorney can help.
How a Wrongful Death Attorney Pursues Your Justice
David Azizi has practiced personal injury law for 25 years in Los Angeles, Beverly Hills and the surrounding area. He has helped numerous clients obtain the financial help they need after a family member died. He knows that this will never provide them with the love and emotional support the decedent gave. However, it will help them keep up with household expenses and pay for funeral and burial costs. Call David to schedule a free case review.
The Basics of a Wrongful Death Claim
A wrongful death claim may be filed against a person, government entity, business or manufacturer if an individual died as the result of negligence or an intentional act in California. It is hard for a family to fathom that their loved one is dead. It is even harder for them to deal with their demise if it resulted from negligence or misconduct. Emotionally, the family faces feelings of disbelief, shock, anger and grief. The person’s death also leaves behind a financial burden that many families find hard to deal with. By filing a wrongful death claim against the at-fault party or defendant, the family can be compensated for their loss.
Who Can File for a Wrongful Death Claim?
Surviving family members (plaintiffs) are able to file a wrongful death lawsuit in California. The following persons may file:
- The spouse of the decedent
- The children of the decedent
- The putative spouse of the deceased (A putative spouse is someone who believes they are married even though their husband or wife may have legal impediments to being married)
- The children of the putative spouse
- Parents if they are dependent on the deceased financially
- Siblings if they receive support from the decedent
- A minor who has lived in the household for 180 days and receives a minimum support of 50 percent from the deceased
Damages in a Wrongful Death Lawsuit
The following are some of the damages that are included in a wrongful death lawsuit:
- Loss of the decedent’s support such as wages and bonuses
- Loss of future earnings
- Loss of savings
- Loss of benefits held by the deceased, including insurance, pension and retirement accounts
- Funeral and burial costs
- Loss of the value of the decedent’s love and companionship
- Loss of the deceased’s guidance and emotional support
- Loss of household services performed by the decedent
Reasons for a Wrongful Death Lawsuit
There are many reasons for a wrongful death lawsuit. Some of the most common are:
- Car accidents, motorcycle, pedestrian and bicycle accidents account for many wrongful deaths
- Malpractice by medical professionals or facilities
- Defective products account for many wrongful deaths each year
- Dog bites occur frequently in California and account for many wrongful deaths
- Work-related accidents caused by a third-party or defective product
- Intentional or criminal acts are considered wrongful deaths
- Government negligence that leads to the wrongful death of an individual
- Truck accidents that take the life of a family member
Punitive Damages in a Wrongful Death Lawsuit
In the state of California, punitive damages are not able to be included in a wrongful death claim no matter how egregious the perpetrator’s act was. This is possible in a survival action, which we will discuss next.
A wrongful death suit revolves around the loss of financial support and other services the decedent provided. Included in this is the loss of inheritance and funeral and end-of-life expenses. Pecuniary loss is calculated using several factors. This includes the decedent’s ability to earn, his or her life expectancy and other factors. Experts can be used to establish pecuniary loss.
An action that survives the death of an individual is called a survival action. In this type of claim, the action is brought by the decedent’s estate or their successor in interest. A successor in interest is someone who can inherit from the deceased’s estate using a trust, will or intestate succession. The survival action is filed by a representative of the estate or the successor in interest.
Personal Injury Prior to Death
A survival action is viewed as the personal injury claim the decedent would have filed had he or she lived and precedes the time the person died. In essence, this claim outlives the death of a person. The survival time between the injury and death can be short, and if the person survived long enough to have economic damages, a survival claim is appropriate.
The personal injury implicit in a survival action includes the following information:
- The conscious suffering and pain the person experienced
- The level of consciousness of the injured person prior to death
- The degree to which the person was aware he or she was dying
- The level of pain the individual experienced
Damages in a California Survival Action
The damages incorporated into a survival action are those the individual would have been able to file in a personal injury lawsuit with some differences. They are:
- Medical costs: This includes the ambulance ride to the hospital, medical treatment, surgical costs, cost of medication and the hospital stay as well as other charges related to medical care.
- Lost wages: The wages the person lost due to their injury can be included in a survival action. This also includes any bonuses the person may have expected.
- Property damages: This can be a costly item and is recoverable.
- Pain and suffering: This type of damage is not allowed in a survival action.
- Punitive damages: Such damages are meant not to compensate the victim for their loss but to punish the defendant for egregious behavior. This can be due to drunk driving or manslaughter to name two examples. To secure punitive damages, the plaintiff must show that the defendant exhibited malice, oppression or fraud by presenting clear and reasonable evidence. Punitive damages also are meant to prevent the same or similar acts by others in the future.
Evidence in Punitive Damages
So, what type of evidence is needed to prove punitive damages. In a personal injury case, the proof of damages is based on a preponderance of the evidence. This means the evidence has a greater than 50 percent chance of being true.
The evidence needed for punitive damages is different. Here, the lawyer must show that oppressive behavior, fraud or malice occurred. Instead of a preponderance of the evidence, the proof offered must be clear and convincing. This means it is highly likely the evidence is true rather than untrue. It is a higher form of evidence than that in a personal injury lawsuit but not as high as would be required in a criminal case.
Who Decides If Punitive Damages Should Be Awarded?
The jury decides on punitive damages, and there are two ways to do this. The plaintiff requests punitive damages but cannot ask for a set amount. This can be addressed simultaneously with the defendant’s liability or separately. If the latter route is taken, the trial must be won first in the plaintiff’s favor and then the jury determines the amount of punitive damages. The jury will not have access to the defendant’s ability to pay a particular amount until the phase when their finances are revealed if liability and punitive damages are considered separately.
Some Examples of a Survival Action
Some examples that could be the basis for a survival action by the person’s estate are:
- An elderly person died due to nursing home abuse
- A car accident victim who survives for a time before dying
- Someone who died several days after being burned badly in an explosion
- The victim of a defective product accident if the person’s death is not immediate
Free Case Review With a Wrongful Death Law Firm
David Azizi works hard to ensure that his clients obtain the compensation they deserve and succeeds 98 percent of the time. The legal ranking company, Super Lawyers, calls David one of the top personal injury firms in Los Angeles. You can call David at (800) 991-5292 to schedule a free case review, or contact him online.