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Wrongful Death And Survival Actions After Car Accident

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Jeff Sevey

A car accident has the potential to place a tremendous amount of stress on the human body. In the average crash, the occupants of the vehicle are subjected to crushing gravitational and shearing forces. These forces can result in serious injury and death.

The high number of drivers and vehicles on California’s roads and highways can serve to make driving a dangerous activity. Over the past three years, accident fatalities have risen over 13%. In 2014, the last year for which there are available statistics, 3074 people were killed in car accidents in the State of California.

If a member of your family suffered fatal injuries in a car accident in California, the law is there to protect your family’s interest. Wrongful death and survival actions offer remedies that can safeguard your family during this difficult time, as well as provide for a secure future.

Wrongful Death vs. Survival Actions - What's The Difference?

When someone loses their life because of the negligent actions of another, the victim’s family has two avenues of legal recourse – an action for damage based on wrongful death and/or an action for damages based on survival. If you’ve lost a family member in an auto accident, it’s important to understand the difference between the two.

Wrongful death is designed to compensate the decedent’s family for their losses. We will talk about these losses in greater detail in a moment. A survival action, on the other hand, is designed to compensate the decedent for their losses, as if they had lived.

This means that a wrongful death action can be brought any time a death occurs due to negligence. However, a survival action can only be brought if the victim lived for a time before succumbing to their injuries. This is because, under the law, wrongful death is designed to compensate for losses that occurred after death, while survival is designed to provide compensation for losses that occurred from the time of injury until death. If death was instantaneous, the window of time for compensable damages to accrue is simply too short.

Neither wrongful death nor survival are mutually exclusive actions. If the circumstances warrant, both actions can be brought against the responsible party in one lawsuit.

Finally, while both wrongful death and survival actions are most commonly associated with cases of negligence, they are available as legal remedies any time a person dies as a result of the actions of another, negligent or not. This means that intentional acts, such as murder, also can potentially give rise to a wrongful death and/or survival action.

The reason that wrongful death and survival are mainly used in cases where death was the result of negligence is because negligence is, by definition, an unintentional act. This means that the actions that caused the decedent to lose his or her life are covered by insurance.

Intentional acts, like murder, are not covered by insurance. Therefore, you will only see a wrongful death/survival action being brought for murder in those rare cases where the accused has sufficient independent assets to pay for the judgment against them, as happened in the O.J. Simpson case.

Who is Entitled to Bring a Wrongful Death or Survival Action?

In California, anyone who would be entitled to inherit from the decedent’s estate in the absence of a will is entitled to bring a wrongful death claim. This generally only includes the decedent’s spouse and children, but can be extended to include other more distant relatives, should the circumstances warrant.

In addition, a death due to negligence can only give rise to one lawsuit based on wrongful death. Therefore, everyone who is entitled to compensation under the law must be brought into the suit unless they forego their right to compensation by seeking a court-ordered dismissal from the suit.

A survival action, on the other hand, can only be brought by an individual who has been appointed by a probate court to act as the administrator over the decedent’s estate. This is because any damages awarded as a result of the survival action are considered to belong to the decedent. Therefore, they are an asset of the decedent’s estate and must be distributed per the decedent’s will or, if there is no will, by the probate laws of the State of California. In most cases, the administrator of the decedent’s estate will be the same person who brought the action for wrongful death.

When Does a Wrongful Death or Survival Action Need to Be Filed?

The short answer is as soon as practically possible following the death of the decedent. The longer the amount of time that occurs between the death of the decedent and the filing of the lawsuit, the greater the chances become that evidence or testimony may be lost. A wrongful death/survival action is a remedy and like all remedies, the quicker it is applied, the quicker that relief is obtained.

In any event, all wrongful death claims must be brought within two years of the date of death. Survival actions, however, must be brought within two years of the date of the negligent act that caused the injury. Once again, this differs from wrongful death because the survival action belongs to the decedent, not the survivors.

This means that the family of an individual who lingered for more than two years following injuries caused by a negligent act before dying of those injuries would be barred from bringing a survival suit on the grounds that the decedent had ample time to bring a lawsuit for those injuries on their own behalf.

What Types of Damages are Available in a Wrongful Death or Survival Action?

The California statute that governs wrongful death allows for the recovery of all damages that are “just”, except for damages that are recoverable under the statute governing survival actions. “Just” damages have been interpreted by the court to include loss of support, loss of services, burial and funeral expenses, and loss of companionship and cohabitation.

The statute that governs survival actions allows for the recovery of all damages that would have accrued to the decedent had they lived, except for damages due to pain, suffering, and disfigurement. These include damages for medical expenses, lost wages, and punitive damage if applicable.

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