What Is the Difference Between a Wrongful Death Lawsuit and a Survival Action?
The difference between a wrongful death lawsuit and a survival action is the grounds the claim is based on. A survival action is a lawsuit for damages that the person would have been able to bring had she or he lived. A wrongful death action is a lawsuit for damages that the family of the deceased person suffered because of the death of the person. Both are lawsuits that can be filed when a family member dies because of the wrongful acts of another person. While the death of a loved one is tragic, a wrongful death lawyer can help you to ensure compensation for your losses.
What Is a Survival Action?
A survival action is filed by the personal representative of the deceased person. If a living person suffers some form of injury caused by the negligence or an intentional act of someone else, he or she may file a lawsuit claiming damages. If a person passes away, the lawsuit will have to be brought by a representative of that person.
For example, a person may be in an accident caused by another driver’s negligence. This person could suffer injuries, requiring hospitalization, and experience pain and suffering in the process. This person would normally be able to file a personal injury lawsuit against the negligent driver. However, the trauma may be serious, or worsen, leading the person to eventually pass away. Since the person is now deceased, and no longer able to file a lawsuit, a representative for this person would file it on his or her behalf.
A survival action is basically the same as a personal injury claim. It is made against an at-fault person who caused injuries to another person, and the damages claimed are the same. The difference is that a personal injury claim is brought by the injured person, while a survival action is brought after the person has died, by a representative of the deceased, and the compensation goes into the deceased person’s estate.
Damages in a survival action are for compensation relating to injuries by the deceased person until his or her death. These include pre-death medical expenses, pain and suffering, and lost wages suffered between the time of the injury and death.
Illinois Wrongful Death Claims
A wrongful death occurs when someone dies because of another person’s wrongful intentional tort or negligence. When there has been a wrongful death, the deceased’s surviving spouse, children, or other family members may sustain losses due to this death. A wrongful death lawsuit seeks compensation for these damages.
The damages that can be claimed in a wrongful death claim can include the following:
- Expenses for the funeral and burial.
- Loss of financial support from the deceased, including wages and benefits.
- Loss of support and companionship.
- Grief, sorrow, and mental anguish.
- Loss of consortium for the surviving spouse or partner.
Who Can File a Survival Action in Illinois?
A survival action is filed by a representative of the deceased person’s estate. This representative is known as the executor of that estate. The person who is appointed to be executor is usually someone named by the deceased person. If the deceased did not name anyone as an executor, then the court can appoint a representative.
Who Can File an Illinois Wrongful Death Lawsuit?
In many states, a wrongful death lawsuit can be filed by the person seeking damages. This would be a surviving spouse, child, or other affected family members. In Illinois, however, a wrongful death lawsuit must be filed by a personal representative of the deceased’s estate. If there was a will naming someone as executor, then this executor is the personal representative.
If the deceased person did not have a will, then an interested party will nominate someone to be appointed by the court as an administrator of the estate. This administrator then becomes the personal representative of the estate and is able to bring a wrongful death lawsuit.
In deciding whom to appoint as administrator, Illinois law gives preference to nominees in the following order – surviving spouse first, then legatees, children, grandchildren, parents, siblings, and finally the nearest kindred.
The Similarities Between a Wrongful Death Lawsuit and a Survival Action
In both survival and wrongful death actions, the person dies as a result of another party’s wrongful act, neglect, or default. These claims can be brought in any situation in which the deceased person could have claimed personal injury against someone else, had he or she survived. Events resulting in wrongful death can be accidents such as car accidents or fatal workplace accidents caused by negligence. They can also be medical malpractice or intentional acts such as crime. Both actions seek damages from the person who is responsible for causing the death.
In both actions, the lawsuit is brought about by the personal representative of the deceased’s estate. This personal representative is either an executor as named in a will or a court-appointed administrator.
The Difference Between a Wrongful Death Lawsuit and a Survival Action
There are several significant differences between a wrongful death lawsuit and a survival action.
Who Receives Compensation
In a survival action, the damages are claimed on behalf of the deceased person’s estate. Thus, any compensation received goes into the estate. The money is then dealt with in the same way all the money is dealt with in an estate. The creditors claim any amounts owed to them out of the estate, and the remaining value of the estate gets disbursed, either according to the will, or the laws of intestacy if there is no valid will.
On the other hand, while a wrongful death lawsuit is brought by the personal representative of the estate, it is for damages suffered by family members of the deceased. Therefore, damages go directly to the person claiming the compensation, which is the spouse, children, or other family members, and not to the deceased person’s estate.
What Damages Are Claimed
In a survival action, the damages are claimed on behalf of the deceased person. They are for compensation for the deceased person’s injuries and suffering before the death. They are for medical bills, lost wages, pain and suffering, lost income, and property damage. In a wrongful death lawsuit, the damages are not claimed on behalf of the deceased person, but by family members. These damages are for a loss of financial support, loss of consortium, loss of household services, and emotional suffering.
When the Death Happens
A survival action is on behalf of the deceased person, for damages suffered as a result of the accident, and is the same as the amount of damages that would be claimed in a personal injury lawsuit. The person may have had to suffer days, weeks, or months of medical expenses and pain and suffering, and the survival action is compensation for this. For a survival action, there must be a time period between the accident and the death of the person. The longer this period is, the greater the medical bills, as well as the pain and suffering, is likely to be. However, if the person died immediately following an accident, then there are no medical bills to claim nor would there be pain and suffering to claim. Thus, there would be no damages.
For wrongful death claims where the person dies at the scene, however, his or her family members have the same damages as if the person died later on in the hospital. The period between the accident and the death does not affect the amount of damages suffered at all. So, for a wrongful death claim, there is no requirement for a time period between the accident and the death. If there is one, the length of time does not impact the claim in any way.
The Statute of Limitations for Wrongful Death Claims and Survivor Actions
A statute of limitations is the time period within which you are able to bring a claim or file a lawsuit. If the time period specified in the statute of limitations has run out, then you are unable to bring a claim. There are, however, exceptions to this rule for special circumstances.
In a survival action, the claim is brought about because of the injuries suffered. Because of this, the statute of limitations begins running from the time that the person suffered the injuries. In a wrongful death lawsuit, the claim is based upon the death of the person, and so the time limit starts running from the time that the person dies.
In both cases, the statute of limitations is two years, but this two-year period begins at different times, depending on whether there was a period of time between the person suffering the injuries and passing away. A wrongful death attorney can examine your case to determine how long you have to file a claim, and what type of action you should bring against the liable party.