The blog entry below was written in conjuntion with one of our colleague’s in Little Rock, AR.
In cases where a fatality is involved, the types of viable claims that may be pursued are varied and complex. The heirs to a decedent’s estate may have questions about potential recovery from a negligent act, and while the nomenclature may be confusing, the concepts between the two actions are not.
When pursuing a negligence action that involves a death, it will be necessary to allege a negligence and/or a negligence per se cause of action in addition to other causes of action, as a skilled wrongful death lawyer Little Rock AR trusts might explain. Not only will this assist the heirs to maximize recovery, it will be mandatory in many jurisdictions for causation purposes.
It will be necessary in most jurisdictions to petition a probate court to open an estate and to name a personal representative of the estate to act on behalf of all heirs. Many states do allow for wrongful death claims to be filed in the actual names of all heirs, but the survival statute, in many states, will require the claim to be made in the name of the personal representative. Don’t let this procedural requirement trip you up in the event you will be seeking a survival claim in addition to a wrongful death claim.
Most people have heard of this type of action. A wrongful death action is designed to compensate the family members for their losses. These damages can include lost wages that the family members were dependent on, medical expenses, funeral and burial expenses, loss of services, and damages for the emotional toll of the loss on the family members.
Heirs should check the wrongful death statute in the decedent’s jurisdiction to determine the consanguinity of relatives allowed to take part in a wrongful death suit.
A Survival action allows a decedent’s estate to assert a claim for the decedent’s injuries before he or she died. These can include the decedent’s pain and suffering from the time of the accident until the moment of death, as well as the economic losses suffered by the decedent. This claim basically allows the Estate to take over the personal injury claim the decedent has until he or she died.
As you can see, damages in a survival action are extremely valuable, and you lose those damages if you do not file suit in the name of a decedent’s estate. Yes, you can still maintain a wrongful death claim and seek some damages without opening an estate in many jurisdictions, but you lose the valuable claim of a survival action without doing so. In a time crunch prior to the statute of limitations? It’s still possible to set up a special administrator quickly for the purpose of filing suit on behalf of the estate.
Can you assert both of these actions in a lawsuit? In many states, yes. However, some jurisdictions will allow you to assert both a wrongful death claim and a survival claim while only recovering for one of the claims.
Thanks to Steve Harrelson and our friends and co-contributors from Harrelson Law Firm, P.A. for their added insight into the differences between wrongful death and survival claims.
Please call my Personal Injury law firm office in Westerville today to schedule a free initial consultation. I handle all personal injury cases on a contingency fee basis. You don’t pay attorney fees unless we win. You can reach me by phone at 614-898-5300 , toll free from anywhere in Ohio at 877-898-HEIT or contact me via email to get started.
647 Park Meadow Rd.Suite M Westerville, OH 43081 Phone: 614-898-5300
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