The days where a personal injury claim dies with the victim are long gone. Various states have passed laws that recognize both survival action and wrongful death claims. These two, although tied together in preserving the rights of the deceased, cover different forms of damages.
The major differences between these two are the key elements probed for the validation of the claim, damages covered if each claim has been proven, and the aspect of distribution of the said damages.
In a wrongful death claim, breach of duty and causation are the burden of proof established throughout the case. The basis of damages to be covered by the claim is the act or lack of action of the entity at fault.
In survival action, the inquisition goes beyond the negligence of duty. Survival action takes into consideration the difficulty experienced by the victim between the accident and death.
Designed as reparation to the family or dependents of the victim, a wrongful death claim covers lost wages, medical expenses, and other financial issues that the death has brought to surviving relatives or dependents.
Meanwhile, survival action doesn’t merely focus on the aftermath of the death. It covers the probable damages that the victim would have been able to fight for if he or she had survived. Laws.com describes this as “the continuation of tort actions that the victim would have been entitled to raise in life.” In Washington, survival action also considers the expenses incurred by the victim while the person was struggling for life at the hospital, regardless of the duration of the stay.
Distribution of claims
In wrongful death cases, relatives (immediate or distant), and rightful dependents may receive the settlement in behalf of the victim.
However, in survival action claims, the victim’s estate will be the primary premise for distribution of damages. Only the heir or lawful dependent of the victim will be entitled to the damages recovered, as stipulated by the will of the victim.
Can representatives file for both? This depends on the statute governed by State law. Some states allow the filing of both claims and receiving the compensation for both. However, states like Virginia only allow the representative to recover either of the two.