It is never easy to loose a loved one. And then, it is even harder to have to go through the process of financial recovery – especially when it becomes necessary to go through the courts. When recovery through court action becomes your only option for redress, one of the most important first steps in laying out a winning strategy for any lawsuit or claim is identifying what SORT of claim is appropriate. While the names “Wrongful Death” and “Survival Action” seem to imply similar claims, the foundation upon which these claims must be built are quite different. Seeking damages on the basis of a Wrongful Death action when the appropriate suit is a Survival Action is likely to result in your lawsuit being dismissed outright.
In the simplest of terms – both a Wrongful Death suit and Survival Action involve a deceased person. The difference is in the cause of that death.
When a death is caused by the negligent or intentional act of another person, you may have a Wrongful Death suit.
When a death is not caused by another’s negligent or intentional act but occurs of another, unrelated cause before suit can be filed then a Survival Action is appropriate.
Both forms of action must be brought by the decedent’s estate, usually by a representative of the estate.
What happens to money damages awarded in a Wrongful Death claim is also different than in a Survival Action. In a Wrongful Death claim there are no damages for the pain and suffering of the deceased. Rather, the decedent’s surviving family members are able to recover for their own grief as well as pain and suffering. In order to recover however, the survivor(s) must establish their close relationship with the deceased.
In a Survival Action, the estate may recover damages for the decedent’s medical bills, injuries, and pain and suffering. The decedent’s survivors may not recover anything on account of their own pain and suffering. Any damages awarded will be distributed to the deceased’s estate, then disposed of according to his or her will. If there is no will, damages will be distributed according to Virginia probate law.
Finally, if either action goes to trial, a jury will assign the distribution of any damages. If either action is settled prior to trial, generally the settlement distribution is agreed upon by the survivors. If the case is a Wrongful Death claim, the court must approve the settlement as well as the distribution.
If you or someone you know has lost a loved one due to someone else’s fault, willful act or negligence, give the experienced personal injury attorneys at Winslow & McCurry a call at (804) 423-1382 to schedule a personal injury consultation. We are here to help.
