WHEN PERSONAL INJURY BECOMES WRONGFUL DEATH AND SURVIVAL ACTION

WHEN PERSONAL INJURY BECOMES WRONGFUL DEATH AND SURVIVAL ACTION

 The most tragic result of an accident is the death of a loved one.  In a number of such cases, someone is severely injured by another party’s negligence, and that injury results in death at a later point in time. When this occurs, the loved ones of the dearly departed are usually rightly focused on all the other things going on after death.  They are going through the pain and anguish of the loved one.  They are deciding how to handle all the various administrative and practical tasks associated with the death. Arranging a funeral, obtaining death certificates, finding the last will and testament are only the tip of the iceberg of the various necessary duties of the loved ones.  One thing that must be considered at an early stage is handling the legal claim against the negligent party in the new circumstances. Importantly, the death does not end the claim, but changes the parties and adds new party claims.  Let me explain.

 

         Whenever someone dies as the result of the negligent actions of another, there are two primary claims by two different types of parties against the negligent party.  The first potential claim is the wrongful death claim brought by those dependent upon the person who died. For example, if a breadwinning husband and father dies, a wrongful death claim can be brought by his wife and children for what the death deprives of them.  In particular, the father/husband’s future earnings to take care of his family. The key point about this claim is that it’s separate from the claim of the person who died.  The damage award will be assessed for each loved one and given to them after resolution of the case (for the children, it may be in trust).

 

        The second type of claim is called a “survival action”, the claim brought by the estate on behalf of the dead. This claim is theoretically what damage the wrongdoer caused the dead before he passed, and is normally the assessment of the pain and suffering brought before death.  If the person spent a great deal of time in pain prior to death, the damages would normally be more than if he died instantly.  This is brought by the personal representative on behalf of the estate, and the award would go into the estate to be distributed to the beneficiaries of the last will and testament (or intestacy, by state law to heirs).  Many times, the same parties who brought the wrongful death are also beneficiaries of the will, though not always.  To give an example of how this works:  The wife and children of the dead father have received a damage award for what the death caused them (being deprived of the father/husband’s salary).  The wife and children were also named in the will, and when the survival action resolves, it is distributed by the terms of the will.

 

        Normally, the suits are brought while the estate is being probated, and is brought in one lawsuit with multiple parties and claims.  The same wrongdoer (assuming one wrongdoer) would be paying out the various claims associate with the death. If insurance is involved and doesn’t cover all damages, this could be a time in which under-insured coverage comes into play.  These kinds of cases normally settle before trial due to the high damages and limits on insurance coverage, but can work to take care of loved ones through a very tough time.  Finding the right lawyer in these circumstances is critical.

 

Last modified on Wednesday, 12 May 2021 11:11

Bill Connor Orangeburg Attorney Bill Connor received his Bachelor of Arts from The Citadel in 1990, and after serving for over a decade as an Infantry Officer in the U.S. Army, including three deployments to the Middle East, he received his Juris Doctorate from The University of South Carolina in 2005. In 2012, Bill was honored to receive an AV® Preeminent™ Peer Review Rating by Martindale-Hubbell®, the top peer rating for American lawyers. Receiving this rating at such an early point in his career is unheard of among lawyers.

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