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What if one or more of the survivors who are entitled to bring a wrongful death case decide that they do not want to sue?

By March 29, 2017 November 14th, 2018 No Comments

This is a situation that occurs relatively infrequently in wrongful death actions. In general, if a survivor does not want to be named as a plaintiff, a lawsuit may still be filed by any eligible survivor since California law does not allow one legal survivor to block a lawsuit by another legal survivor. However, due to the fact that California defines survivorship by statutory (written) law rather than by common law, the legal maneuvering to be followed when dealing with “non-plaintiff” survivors can be complicated.

Wrongful death action versus survival action

California allows two types of legal actions (lawsuits) that can be pursued in cases of wrongful death: a wrongful death action and a survival action. Each of these have their advantages and disadvantages as explained below.

In a wrongful death action, damages that can be recovered are related to the fact that the victim died and all damages are thus what was lost by the survivors. Damages that may be claimed in a wrongful death action include as wages or other income, loss of social and family guidance, and funeral expenses but not punitive damages.

A survival cause of action can only be filed if the deceased did not die instantly. In essence, a survivor or the personal representative of the estate “stands in” for the deceased in order to recover damages that would have been available to the deceased had he or she lived. The damages that may be recovered in a survival action include medical expenses and lost wages, as well as penalties and/or exemplary damages.

Regardless of the type of action pursued by survivors, California uses what is known as the “One Action Rule.” This rule states that there can be only one legal action filed in a death and that an heir or inheritor may not later file on their own behalf. Restated, if you were not a plaintiff on the original action, you cannot file your own action later.

Who may file a wrongful death or a survival action?

The California Code of Civil Procedure identifies those who may bring a wrongful death lawsuit or a survival action in a California court. As a general rule, only immediate, or “putative,” family members or a personal representative of the deceased’s estate may file as plaintiff but other survivors may “sign on” to an action as co-plaintiffs.

Dealing with “reluctant plaintiffs”

In California, the courts will want to deal with all potential claimants to an estate and their claims to damages that may be awarded in wrongful death/survival actions in one legal proceeding. In order to eliminate the possibility of multiple actions by different plaintiffs, and in particular a lawsuit by a plaintiff who refused to join in the original wrongful death or survival action, the reluctant heirs can be named as defendants in the wrongful death/survivor action! The legal “hoop-jumping” behind naming a reluctant plaintiff as a defendant is as follows:

  1. A wrongful death and/or a survival action is contemplated, but
  2. one or more heirs (plaintiffs) refuse to be a party to that action.
  3. Since all plaintiffs (including reluctant ones) must be dealt with in a single action, naming the reluctant plaintiffs as co-defendants means that all heirs have “had their day in court.”
  4. The reluctant plaintiffs can petition to be dropped from the lawsuit since they were not liable in the deceased’s death.

It is vital to remember that any California wrongful death/survivor action must be filed within two calendar years of the date of the decedent’s death. Any suit filed after that will almost certainly be “thrown out,” regardless of the merits of the lawsuit.

The choice of the type of legal action to be pursued is based on the circumstances of the survivors and their relationship to the deceased and, in some cases it may be worthwhile to file both a wrongful death and a survival action at the same time. Such decisions should only be made with the advice of legal counsel and after a full accounting of all the facts of each case.

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