When a person dies because of negligence or a wrongful act, it is called a wrongful death. What makes it “wrong” is the negligence or wrongful act happened because of another party. That party can be a company or an individual. In most situations, a family member or personal representative may file a wrongful death lawsuit against the party that caused the person’s death. This is because the person died instantly or shortly after the accident occurred. However, an experienced injury lawyer San Jose, CA may file a different type of wrongful death claim called a wrongful death survival action.
What is a Wrongful Death Survival Action?
A survival action is a type of personal injury claim a person would have been able to file if they could have survived their injuries. For instance, a pedestrian was walking across the street when a driver hit them. They sustained serious injuries and was in the hospital for weeks prior to their death. If the pedestrian would have survived the pedestrian accident, they may have filed a personal injury lawsuit to receive compensation.
A Personal Representative Must File the Lawsuit on the Deceased Person’s Behalf
Only a personal representative, not a family member, can file a survival action on the person’s behalf. The filing must occur after the person’s death. A personal representative is the individual chose to be their executor when making a will. If the person did not have a will, a court will appoint one to let the case proceed. The personal representative is known as the person’s successor-in-interest because they stand to inherit from the person’s will.
Another way personal injury claim become a survival action is if the injured person filed prior to death. The court will make the personal injury claim a survival action. This allows the personal representative to act as the plaintiff and sue for negligence.
Damages Allowed in a Survival Action
The damages available in a survival action include money the person would have recovered if they had survived. This includes lost wages, medical expenses or property damage. They cannot request pain, suffer and disfigurement damages. It is not allowed in California. Other damages include punitive damages. Punitive damages depend on the egregious misconduct or intention used by the defendant at the of the accident. The amount of money award for punitive damages range from $1 to millions of dollars.
A Survival Action Must be Filed within the Statute of Limitations
Statute of limitation is the state’s time limit on filing a lawsuit. It varies according to the personal injury or accident. A typical wrongful death claim must be filed within two years from the person’s death. After that, the family loses the right to sue.
A survival action has a little longer. A personal representative must file two years from the dated the person was injured. They also have approximately six months after the person’s death to file. It depends on which time comes second.