What is the Difference Between Wrongful Death and a Survival Action?

If you have lost a loved one due to the negligence of someone else, you may be able to file a wrongful death claim, a survival claim, or both. Wrongful death and survival claims are similar to each other, but they also have distinct differences. It is important to understand what these are, so you know what you and your family are entitled to under each. No matter which type of claim you are filing, each has its own complexities. For this reason, it is important to speak to a San Francisco wrongful death attorney before filing a claim.

Wrongful Death

The California Code of Civil Procedure, Section 377.60 allows personal representatives of a deceased’s estate to file a wrongful death claim. The personal representative is either outlined in the deceased’s will, or is the deceased’s surviving spouse, child, or other family member.

In a wrongful death claim, family members can claim compensation for any losses they suffered as a result of the wrongful death. Common damages claimed in these lawsuits include funeral and burial expenses, loss of support, loss of services, and loss of companionship.

Punitive damages are not available in wrongful death claims. These damages are not intended to compensate the victim but rather, punish the defendant that acted negligently.

Survival Actions

Under the California Code of Civil Procedure, Section 377.30, the personal representative of the deceased can file a survival action for any losses the deceased suffered before passing away.

It is important to understand that, to file a survival action, the deceased must have lived for a period of time between the accident that caused their death, and their ultimate death. The idea behind survival actions is that a person’s right to file a lawsuit based on another person’s negligence survives them, even if the accident was fatal.

According to the statute, there are several types of damages available in a survival action, but they must be damages the deceased incurred. Common types of damages in these claims include pain and suffering, disfigurement, medical expenses, and lost wages.

Unlike in wrongful death claims, punitive damages are available in survival claims. To determine the amount of punitive damages available in a survival claim, a court will determine how many of these damages the deceased would be entitled to had they survived the accident.

Unsure of What Claim to File? Contact Our California Personal Injury Attorneys

If you have lost a loved one due to the negligence, or carelessness, of another person, your family may be entitled to compensation. At Brod Law Firm, we are the San Francisco personal injury attorneys who can advise on which type of claim you can file. We will also help you through the entire process and give you the best chance of claiming the full amount of compensation you deserve. If you have lost someone, call us today at (800) 427-7020 for your free consultation so we can review your case.

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