When a family member dies as a result of another’s negligence, people are often confused by what cause of action(s) they may have. While the nomenclature is confusing, the concept is not. Generally speaking, two cases of action arise: a wrongful death action, and a survival action.
Wrongful Death Action: Most people have heard of this type of action. A wrongful death action is designed to compensate the deceased’s family members for their losses. Although the damages that are recoverable vary from state to state, ordinarily they include the lost wages of the decedent that the family members were dependent on, medical expenses, and damages for the emotional toll of the loss on the family members.
There are two important aspects of a wrongful death action. First, the damages ordinarily go directly to the family members, and do not pass through the deceased’s estate. Second, state laws vary widely on which relatives can recover for WD. Some states limit the action to recovery by very close relatives, such as spouse and minor children. Other states allow recovery for a broader range of relatives, such as adult children and dependent grandchildren. Moreover, some states allow recovery for grief, while others limit very to lost support and guidance.
Survival Action: The less commonly-known action is a Survival Action. Simply stated, a survival action allows the deceased’s Estate to assert a claim for the decedent’s injuries before he/she died. In a survival action, the Estate is allowed to recover for the decedent’s (as opposed to the living family members) pain and suffering from the time of the injury until the death, as well as the economic losses suffered by the decedent. Essentially, the law allows the Estate to “take over” the personal-injury claim that the decedent had until she died.
There are (at least) two important differences between a Survival Action and a WD claim. First, the damages recovered in a Survival Action go to the Estate, not directly to the family members. The damages are then divided among the family members as set out in the decedent’s will or, if there is no will, pursuant to state law. Second, ordinarily the family members may not recover for their personal losses if only a Survival action is asserted.
Can you sue on both a Survival Action and a WD Action? The answer is governed by State law. For example, in the District of Columbia, both actions may be pursued. In Virginia, while both actions may be pursued, you cannot recover on both claims. Thus, at some point the family must opt to pursue one action or the other.