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wrongful death claim survival action lawsuitThe untimely loss of a loved one is devastating in any situation, let alone when it is caused by the reckless or negligent actions of another party. In such cases, the surviving loved ones of the victim may be entitled to seek compensation by filing either a wrongful death or a survival action against the liable parties who caused the accident. Although no amount of monetary compensation will undo the harm caused and bring back your loved one, it can bring a sense of justice and closure. Hiring an experienced attorney can help you get the full damages that you deserve. For more information or to schedule a complimentary consultation, please call 949-727-9300.

 

The Difference Between Wrongful Death Claims and Survival Actions 

Although both a wrongful death claim and a survival action may be brought by the estate of a victim who died as the result of a personal injury may seek, it is important to note that there are some differences between the two.

Both wrongful death and survival actions are statutory and strictly governed by California state law. In other words, both exist because California passed laws or statutes to allow these types of claims. However, there are two major differences between the laws governing wrongful death claims and survival actions.

First, the wrongful death laws allow surviving loved ones of an accident victim to bring the lawsuit in the first place and set forth the legal procedure for bringing a wrongful death lawsuit. Second, the wrongful death laws and the survival action laws allow the estate to seek different types of damages for the death of the victim. 

In a nutshell: 

  • A survival action compensates the estate for losses sustained by the decedent prior to his or her death. 
  • A wrongful death lawsuit, on the other hand, compensates family members for their own losses sustained as a result of the death.

 

Types of Damages Available in a Survivor Action

The damages allowed under a survival action are limited to actual economic (monetary) losses the personal injury victim sustained after the wrongful act but before his or her death. Since there must have been time for the victim to sustain losses before death, a survival action may not be an option if the deceased victim was killed instantaneously. However, it should be noted that that instant death does not impact the family members’ right to bring a wrongful death claim.

Some common economic damages available in a survival cause of action include, but are not limited to:

  • Medical bills the decedent incurred because of the wrongful act,
  • Damage to the decedent’s property during the wrongful act, and/or
  • Wages the decedent lost between the wrongful act and the date of death.

Again, it should be clarified that neither a wrongful death claim nor a survival action allows recovery for grief or pain and suffering. 

 

Types of Damages Available in a Wrongful Death Case

The California wrongful death statute is relatively vague when it comes to the damages that surviving family members can recover after proving a wrongful death.  The damages that each different party can recover will vary depending on their own specific and personal losses from the death. The court has discretion under the law to decide the rights of each party to certain damages.

Although the specific types of damages available in each wrongful death claim may differ based on the specific facts of that case, below are the common types of damages generally available in these types of cases:

  • Reasonable funeral and burial expenses.
  • The estimated amount of income and benefits the deceased person would have earned in their lifetime had the accident not occurred.
  • Loss of financial support for the household.
  • Loss of services around the household, including cleaning, landscaping, cooking, caring for children, and other everyday tasks and contributions to the family.
  • Loss of intangible support, including love and affection, encouragement, moral support, guidance, attention, and more.

 

Who Can Claim Compensation: Wrongful Death v. Survival Cause of Action

California Code of Civil Procedure Section 377.60 allows the following legal heirs to seek wrongful death damages with the following order of precedence:

  • First in line are the surviving spouse, children, and surviving issue of deceased children of the decedent — these people have the right to claim damages “jointly and severally” — that is, they share a single claim for damages.
  • Next in line are the person’s parents; then brothers and sisters; then the children of deceased brothers and sisters; then grandparents; and then their descendants.
  • Minors who lived with the deceased victim and who received 50% support from the victim at the time of the victim’s death. This minor must have been part of the deceased’s household for at least 180 days before the victim’s death.

Under Code of Civil Procedure 377.30, a survival cause of action must be brought by the decedent’s personal representative. If the estate does not have a personal representative, the action can be brought by the decedent’s successor in interest.

 

Proving Wrongful Death Cases

In order for your Orange County wrongful death attorney to succeed in a wrongful death lawsuit, he must prove the following:

  • Your loved one died as a result of the negligent or wrongful actions of another party.
  • As an heir, you suffered damages as a result of your loved one’s death.

Wrongful death cases are generally more complicated than other types of personal injury claims. These cases are also typically more emotionally charged. As such, it makes it even more important for you to hire an attorney who is aggressive in getting the full compensation that you deserve, as well as compassionate to help guide you through these difficult times.

If your attorney can prove a successful wrongful death case, you may be entitled to compensation for the following:

  • medical and funeral expenses connected to the death
  • loss of the victim’s expected earnings
  • loss of benefits, such as pension plans or medical coverage
  • loss of an inheritance caused by the untimely death, and
  • the value of the goods and services that a victim would have provided.
  • damages for the survivors’ mental anguish or pain and suffering
  • loss of the care, protection, guidance, advice, training, and nurturing from the deceased
  • loss of love, society, and companionship from the deceased, and
  • loss of consortium from a deceased spouse.

 

Call an Orange County Wrongful Death Attorney

As a family member of a loved one who died in an accident, you may also be entitled to compensation. To ensure you get the full money damages you deserve, you need to consult with and hire an Orange County wrongful death attorney. With multiple offices located in Irvine, Los Angeles, El Segundo, San Diego, and Riverside, the wrongful death lawyers at the Law Offices of Samer Habbas & Associates represent loved ones of deceased across Southern California.

For more information or to schedule a complimentary consultation with an OC wrongful death lawyer, please call 949-727-9300.