When someone dies in a car accident, there are usually two lawsuits to be filed: a wrongful death lawsuit and a survival action. These cases are usually filed together and handled at the same time, but they are technically separate causes of action and pay slightly different damages in a slightly different way.
A survival action is used to take up the claim that the victim would have been able to file if they survived the crash. This means that you can file a personal injury lawsuit on behalf of your deceased loved one to recover compensation for their end-of-life medical bills, lost wages, and pain and suffering. The damages here are paid into the victim’s estate rather than going directly to the surviving family members like in a wrongful death lawsuit.
For help with your case, call the NYC wrongful death lawyers at The Carrion Law Firm today at (718) 841-0083.
What is a Survival Action and How is it Different from a Wrongful Death Case in NYC?
A survival action and a wrongful death action are both causes of action (i.e., types of civil cases) filed when someone dies in a car accident that is someone else’s fault. The purpose of each lawsuit is a bit different, and the way that each one is handled and that damages are paid also differs between the two. Our Brooklyn wrongful death lawyers can help you determine which cases you need to file and how to get them filed properly.
Survival Action
A survival action is a lawsuit filed in place of a deceased victim and authorized under E.P.T. Law § 11-3.2(b). In a car accident case, a surviving victim would have been able to sue for damages in their own right. This could cover things like medical bills and other economic damages (lost wages, lost household services, etc.) as well as pain and suffering and other non-economic damages. If they die, this lawsuit does not go away; it becomes a survival action that their estate can file on the deceased’s behalf.
The deceased’s personal representative – a person named in their will or appointed by the court – can file the lawsuit for the victim’s estate if the victim has died. This lawsuit works essentially the same as any other injury lawsuit in that it can claim the same damages. The only difference is that instead of paying the victim directly for the damages, the damages are paid into their estate and distributed along with any other assets.
Wrongful Death Action
A wrongful death action is filed to benefit the deceased’s family for the economic damages they suffer because of their loved one’s death. This lawsuit is authorized under E.P.T. Law § 5-4.1, and is also filed by the personal representative. Damages are distributed to particular family members (usually the spouse and children, first and foremost) under the rules of § 5-4.4 and § 4-1.1.
This lawsuit has some overlap in damages, in that it can also cover the victim’s end of life care, but you usually only get these damages paid once rather than doubling up with both causes of action. Wrongful death lawsuits also pay for the victim’s funeral and burial expenses as well as lost support and income going forward after a parent or spouse dies.
This lawsuit can also result in punitive damages for the victim’s family to punish the bad actor in the case of serious negligence, recklessness, murder, or repeated dangerous acts that caused the death.
One area of compensation that is highly contested is pain and suffering damages for the victim’s family. While some damages can be claimed for lost companionship for minor children, other damages cannot be claimed for the family’s grief. There are, however, proposals to change this law.
Should I File a Survival Action After a Loved One is Killed in a Car Accident?
Most people think of a car insurance claim as the proper claim to file after someone is killed in a car accident. In many cases, this will not be enough, and you might want to consider filing a wrongful death lawsuit – but is that enough? Is a survival action also necessary?
Generally, a survival action and a wrongful death action cover separate damages. This means that you cannot get all of the damages you and your family need after a loved one is killed in a car crash unless you file both claims.
While end-of-life medical bills can be paid through either claim, there are damages that cannot be claimed outside of a survival action. Additionally, depending on who you are and your relationship to the victim, you might not be eligible for damages under a wrongful death lawsuit and can only benefit from a survival action.
Unique Survival Action Damages
Survival actions can cover lost wages between the time of the action and the victim’s death. If they lingered in a coma or were hospitalized for weeks or months after the accident, then there could be substantial lost wages and other economic damages that your family needs. Wrongful death lawsuits typically only cover damages from after the victim’s death, so a survival action is necessary for these pre-death damages.
Non-Economic Damages/Pain and Suffering
Since wrongful death lawsuits only cover economic damages, you cannot get compensation for most pain and suffering damages unless you file a survival action. However, keep in mind that this lawsuit covers the victim’s pre-death pain and suffering rather than the family’s grief and suffering after their loss.
These damages usually account for the victim’s fear and pain from the injury, suffering while in the hospital, and pain of the medical care they underwent to try to save them.
Survival Action Damages Paid to Other Parties
Wrongful death damages can only be paid to the deceased’s spouse, children, and parents – and parents are usually skipped if the deceased has children. However, damages from a survival action are paid into the car accident victim’s estate and can be distributed to anyone that their will designates. This can potentially help unmarried partners, other dependents, other family members, and other loved ones receive compensation for their loved one’s passing where a wrongful death lawsuit would otherwise leave them without compensation.
Call Our Survival Action Lawyers for Help Today
If your loved one died in a car accident, call The Carrion Law Firm’s Long Island wrongful death lawyers to discuss a survival action at (718) 841-0083.