When a loved one is lost due to the actions of another in California, surviving family members experience an immeasurable loss. This loss consists of amounts of grief and sorrow and feeling like your loved one has been stolen away. While there is nothing that can undo what has happened and return your loved one to you, you have the right to seek damages if your loved one’s death was the result of the negligence or wrongdoing of another. Even though the loss is immeasurable, the only way to compensate for it is money. California Law provides two avenues for recovering compensation after a family member’s death: a survival action and a wrongful death action.
What Is a Survival Action vs. a Wrongful Death Action?
The easiest way to think about a survival action vs. a wrongful death action is that a wrongful death action is filed to recover compensation for damages to heirs for the losses they have experienced as a result of the death; a survival action is brought to compensate the decedent’s estate for losses the decedent suffered prior to death.
Damages Recoverable in Each Action Type
To help clarify the distinction between a wrongful death suit and a survival action explained above, consider the different types of damages that are recoverable in each suit type—
Wrongful death action
- Economic damages incurred as a direct result of the decedent’s death, such as funeral and burial expenses, loss of financial support and wages, and the value of household services; and
- Noneconomic damages, such as the loss of companionship, consortium, protection, parental guidance, etc.
- Note that Senate Bill 447 (“S.B. 447”) Is a research proposal in California which allows the recovery of non-economic damages such as pain and suffering that a decedent experienced before the decedent passed on. Currently, the California code of civil procedure limits damages solely to economic damages if the decedent passes before judgment enters. This effectively means if the plaintiff dies during the litigation, the lawsuit is converted into a wrongful death action and all economic damages are forfeited. With the new Senate Bill proposal, this would change.
- Medical bills incurred prior to death;
- The value of the decedent’s pain and suffering prior to death; and
- Personal property damages suffered.
A survival action also allows for the recovery of punitive damages, which a wrongful death claim does not. Punitive damages are designed to punish the defendant for their egregious actions.
Other Differences Between Wrongful Death Actions and Survival Actions
Two other differences between wrongful death actions and survival actions are who can bring forth the suit and the statute of limitations on each claim type.
A wrongful death claim can be brought by the decedent’s family members, including a spouse, domestic partner, children, grandchildren, or another party who was financially dependent on the decedent or would have been entitled to property under intestacy laws. A survival action, on the other hand, can only be filed by the personal representative of the decedent’s estate.
The statute of limitations is also different for each claim type. The statute of limitations is the limit on the amount of time that can pass between when an injury occurs and a suit is filed. For wrongful death claims, a suit must be brought within two years of the date of the decedent’s death. For survival actions, a claim must be filed within two years of the wrongful act or six months from the date of death.
Get Help with Your Claim Today
If you have lost a loved one, Los Angeles personal injury lawyers at El Dabe Ritter Trial Lawyers can help. We’ll explain the differences between survival actions and wrongful death claims and advise you on which to pursue and how to improve the chances of your case being successful. We work on a contingency fee basis and always offer free consultations. Call today to learn more.