If you have lost a loved one through the negligence or other intentional wrongful act of a person or persons, then you may be entitled to file a wrongful death or survivor action in the State of California. So what are these two types of actions and how are they different?
A wrongful death action is governed by California Code of Civil Procedure Section 377.60 and is filed by one, or more, of the heirs of the decedent. The heirs that are qualified to file are generally close family members such as spouse, children, parents or heirs of those family members. The theory behind a wrongful death action is that the heirs have the right to file for compensation for the future support that they would have received from the decedent had he lived. They may also recover for non-economic losses such as loss of companionship, support and consortium. While these are called “non-economic” losses, they are compensated in monetary terms. The computation of damages in a wrongful death action is very complicated and must take into account numerous factors such as the earning capacity of the decedent at the time of death, future earning capacity, age and health at time of death and contribution to the support of the household. What are NOT taken into account in a wrongful death action are any damages suffered by the decedent prior to his actual death. In other words, if the decedent did not die immediately, any damages that the decedent suffered are not compensable in a wrongful death lawsuit. Additionally, punitive damages cannot be awarded in a wrongful death lawsuit.
A survivor action is governed by California Code of Civil Procedure Section 377.30 and is filed in the name of the deceased by a living representative. Any compensation won in a survivor action is then paid to the heirs of the decedent through the decedent’s estate. A survivor action is intended to compensate the decedent for damages suffered by the decedent before death. In other words, if the decedent was in an automobile accident and was not killed immediately on impact, then any time that the decedent lived from the moment of impact until death is compensable. The time of survival can be only seconds or months in theory. The important issue in a survivor action is whether the decedent survived for ANY period of time after the incident or accident that gave rise to the death happened. Damages in a survivor action are limited to damages actually suffered by the decedent such as medical bills prior to death; however punitive damages can potentially be awarded in a survivor action if it can be proven that the Defendant’s conduct was willful, wanton, reckless or malicious. This is a significant difference between a wrongful death action and a survivor action.
If you have suffered the loss of someone close to you and would like additional information on your legal options, please feel free to contact the California law firm of Ledger & Associates for an appointment with attorney Emery Ledger. The lawyers at Ledger & Associates have been fighting for victims and their rights for over a decade and would be happy to sit down with you for a free and confidential detailed evaluation of your case. They can be reached at 1-800-300-0001 or online at www.ledgerlaw.com
