A wrongful death lawsuit is typically filed following the death of a loved one due to the negligence of another. Yet what happens if your family member or friend is seriously injured in an accident, and then succumbs to those injuries weeks, months or even years later. Many come to us here at Kampf, Schiavone & Associates concerned that their lack of action during the time interval between the event that caused their loved one’s injuries and the date of their deaths disqualifies them from filing a wrongful death lawsuit. If you share the same concern, you should know that there is still legal recourse available to you in the form of a survival action.
Per California’s Code of Civil Procedure, any cause of action that one has against another actually survives their death. Their successor in interest (which could be you, another family member or their personal representative) can the commence or resume the action in their stead. It would be as though your loved one were still pursuing a liability claim against the party responsible for their injuries, yet you are representing their interests.
Due to the nature of a survival action, the compensation that you can receive is limited to what your loved one would have been entitled to had they lived to see the action through themselves. This is where survival actions differ from wrongful death lawsuits. A wrongful death action is meant to compensate you and others affected by your loved one’s passing. The differences between the two types of action are manifest in what is recoverable. You may be able recover punitive damages in a survival action that are not available through a wrongful death lawsuit.
More information on the types of legal action related to death can be found here on our site.
