When a person dies due to a wrongful act in California, the surviving family members are entitled to file a wrongful death lawsuit, or a “survival action” lawsuit. Survival action is oftentimes filed along with a wrongful death claim because it claims damages the victim suffered before their death. Survival action damages normally include:
- Medical expenses the decedent incurred because of the wrongful.
- Damage to the decedent’s property during the wrongful act
- Wages the decedent lost between the wrongful act and the date of death
- Non-economic losses such as:
- Pain and suffering
- Loss of enjoyment of life
- Disfigurement
Wrongful death and survival actions can be brought separately or combined into a single lawsuit. If you’re unsure whether or not your situation qualifies for a survival action claim, it is recommended to speak with an experienced wrongful death attorney.
Recent Changes to Survival Action Claims in California
As of January 1, 2022, an amendment under Code of Civil Procedure 377.34 updated California’s survival action statute. The update allows survivors and representatives to sue for pain and suffering, and disfigurement suffered by the deceased.
This update will be effective from January 1, 2022, and ending on January 1, 2026. Cases filed before this period but have been granted trial preference may also use this new law. Trial preference refers to those 70 years of age or older who suffer from poor health.
Wrongful Death V. Survival Action
“Wrongful death” and “survival action” are two types of lawsuits that may be filed against someone who intentionally or carelessly caused the death of a loved one. The difference between the two claims is who is allowed to file.
A wrongful death claim seeks compensation for the surviving loved ones, which covers funeral expenses, loss of financial earnings, emotional support, and loss of companionship, as well as all other things the decedent would have provided.
Survival action is any personal injury claim the deceased filed or could have filed before their death. This action temporarily allows a survival action to be brought by the victim’s estate to recover non-economic damages. These damages are paid to the victim’s estate and disbursed to the victim’s heirs. Survival action also includes punitive damages if the death was caused by extreme recklessness or malice.
It is also important to note that representatives of the decedent’s estate and family members often overlap. So, it is possible for a family member to file a wrongful death claim and a survival action claim if both are warranted. However, these claims adhere to their requirements and statute of limitations.
What are the Deadlines to File a Survival Action Claim in California?
In California, eligible survivors have two years from the time they lost their loved one to file a wrongful death suit. However, there are exceptions to this statute if you’ve waited more than two years to file. Medical malpractice is an exception, giving eligible survivors three years from the date they discovered their loved one’s death was a result of medical malpractice.
The “discovery rule” is another exception used when the survivors could not have reasonably known their loved one had died. This rule allows a two-year statute to begin from the date the family members became aware of the decedent’s death.
If the person being sued is a government employee or agency, then the deadline to file a claim is 6 months. The duration for filing survival accident claim starts running at the time of the wrongful act, which is a bit different than a wrongful death action that does not start until the decedent’s death.
What Factors Influence a Survival Action Claim Settlement in California?
Settlement amounts for survival action claims are influenced by the following:
- The age and earning potential of the victim: the lost income is reached by combining the victim’s life expectancy and their earning potential had it not been for the fatal accident.
- Whether or not the victim was partially responsible: California is a “shared fault” state and the victim can be assigned blame for their death, reducing the amount of compensation.
- Insurance policy limits of the at-fault party: drivers are required to have insurance and most do. However, most car insurance policies have caps. So, if the cap is met, then you’ll have to resort to other alternatives for compensation.
These details are often revealed through legal processes your attorney will guide you through. Both you (the plaintiff) and the liable party (the defense) will have a chance to discuss the details of the case through:
- Interrogatories: written questions both parties must answer under oath
- Depositions: usually an audio or video recording of a verbal question and answer between both opposing parties under oath and outside of the courthouse
- Request for production of documents: all documents to back up each party’s claims must be presented to both sides
- Request for admission: carefully directed questions to determine whether the party in question agrees with or denies certain claims
Contact a Wrongful Death Lawyer in California
If you’ve lost a loved one due to the careless acts of another or a hazardous condition, the wrongful death attorneys at Maison Law are here to help you through this difficult time. We understand that no amount of money can replace the loss of a loved one, but there are legal procedures put in place to ease the financial burden of an untimely death. For all your legal questions and concerns, contact Maison Law today. There are no upfront charges or hidden costs for our services, and you will not be charged a dime until we’ve won your case for you.
