Distinguishing Between Wrongful Death and Survival Actions
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Distinguishing Between Wrongful Death and Survival Actions

Friday, May 18, 2018By Richard Alexander

If you have lost a loved one as a result of the negligent conduct of another party, you can be compensated under the law. There are two paths to recovery in California after a family member dies as a result of negligence: a wrongful death lawsuit and a survival action. Each cause of action has distinct requirements and may entitle plaintiffs to different awards, but both can be sources of compensation for the loss of a loved one.

Actions for Wrongful Death

A wrongful death action is brought by the estate of the deceased or the deceased’s surviving spouse, children, or other family members who are permitted to file an action under the law. The purpose of a wrongful death action is to compensate certain family members for the loss of support and services provided by the deceased, funeral and burial expenses, and loss of companionship resulting from the individual’s death. Damages are primarily sought for financial injury and noneconomic loss associated with the relationship. In determining the amount that can be recovered in a wrongful death lawsuit, courts typically examine factors related to the age, condition, earning potential, health, and life expectancy of the decedent at the time of death.

Under California law, a plaintiff is not entitled to recover punitive damages in a wrongful death lawsuit even in cases where the defendant acted maliciously and wantonly with blatant disregard to the welfare of the plaintiff. Punitive damages are only available in a survival cause of action.

Survival Cause of Action

A survival cause of action can be filed by a representative of the decedent’s estate. A survival cause of action cannot be brought if the decedent died immediately from injury or illness. This is because the survival statute is designed to allow a representative to take the place of the deceased to seek damages that the deceased would have pursued had he survived, such as lost wages and medical costs. Included in the damages that the estate may recover are punitive damages arising from the negligent conduct that contributed to the death. The decedent must have incurred an economic loss prior to death to bring a survivor action in which punitive damages are sought. In California, punitive damages should be reasonably proportional to the compensatory damages that are recovered in the case.

While these actions have separate criteria, they may be brought jointly upon the death of an individual from negligent conduct as a result of medical malpractice or other personal injury.

If you or a member of your family suffered injury or death as a result of negligence or a defective automobile, contact the attorneys Alexander Law Group, LLP. Our exceptional personal injury lawyers will answer your questions and get you the maximum compensation that is possible. Call 888.777.1776 or contact us online.

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