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Wrongful Death Litigation – What are the Differences Between Wrongful Death and Survival Actions in California?

On Behalf of | Nov 20, 2012 | Articles

There are two types of civil lawsuits that can arise from of the death of a loved one: Wrongful Death Litigation and Survival Actions. Generally, wrongful death statutes are intended to compensate the survivors for the loss of the relationship with the decedent. They are limited to the decedent’s statutory beneficiaries, such as their parents, children, and spouse.

Survival actions, on the other hand, prevent the tortfeasor from escaping liability where their negligence did not immediately cause the death of the decedent. For example, where the decedent was involved in a nonfatal car accident, but died later as a result of the injuries sustained in that accident a survival action may be brought.

Wrongful Death Litigation

Looking at wrongful death litigation, historically there was no remedy available for wrongful death actions. British common law did not recognize a cause of action for the decedent’s survivors, and today wrongful death actions in California are strictly a creation of statute. The first statute permitting recovery for wrongful death was first passed by the California legislature in 1892.

California’s previous wrongful death statutes were replaced with new ones on January 1, 1993. The newest wrongful death statutes can be found under California’s Code of Civil Procedure section 377.6. The main difference between the two statutes is that wrongful death and survival actions arising out of the same incident no longer need to be consolidated into the same case. Instead, consolidation is discretionary. California’s new wrongful death statute also redefines the class of statutory beneficiaries, to include domestic partners as defined in the statute.

Damages sought in wrongful death cases typically include the loss of financial support where the decedent was the primary wage earner of the household, as well as pain and suffering endured by the family, and related funeral and burial expenses. A Los Angeles wrongful death lawyer will be able to advise you as to the types of damages you may be able to recover in a wrongful death lawsuit.

Survival Actions

A survival action does not create a new claim, like wrongful death actions do. Rather, survival actions provide a legal remedy that can be pursued by the decedent’s estate to recover costs that the decedent could have recovered if he had survived. Survival actions typically arise when a victim is injured by a tortfeasor’s conduct or negligence, but does not die until some time later. Medical expenses incurred between the date of the incident and the decedent’s death is a common type of damage sought in a survival action.

Not all fatal personal injury cases qualify as a wrongful death or survival action claim, and it’s important to consult with a qualified Los Angeles about your case. In addition to compensatory damages that cover costs incurred as a result of the bad conduct or negligence of the responsible party, you may also be entitled to additional monetary rewards. The wrongful death and survival action attorneys at Makarem & Associates can advise you about what remedies are available, and help you recover damages for the loss of your loved one. Contact us today by phone 310.312.0299 or email [email protected] to discuss your case.

Views expressed are the personal views of the author(s) and do not represent the views of Makarem & Associates, APLC, its partners, employees or its clients. Furthermore, the information provided by the author is not intended to be legal advice and does not create an attorney-client relationship.