blog home Wrongful Death Should I File a Wrongful Death Claim or Survival Action?

By Renee Nordstrand on December 12, 2017

white flower at a memorial service

If someone’s negligence caused your loved one to die immediately after an accident, then a wrongful death claim against the responsible person is the correct cause of action to file.

If your loved one survived for a short time before death, then a survival action may be appropriate. In some situations you may file a joint claim for both wrongful death and a survival action in California.

Wrongful Death Damages

While the differences between a wrongful death and a survival claim may seem subtle, they are important and will affect the claims and damages you can recover in a lawsuit. If your loved one died in the immediate circumstances of an accident or someone’s negligent actions, then a wrongful death claim is typically appropriate and allows you to seek damages for loss of financial support, funeral expenses, and loss of companionship and sexual relations. Punitive damages are not available in a wrongful death lawsuit. (CCP 377.61)

Survival Action Damages

If your loved one survived the initial accident or event, even if only for a very short time, then you can file a survival action. Rather than suing someone for the death itself, you bring this type of lawsuit against someone on behalf of the deceased. In effect, you are acting in his/her stead to make the claim he/she would have been able to file had he/she survived. In addition to those damages available for wrongful death, damages available in a successful survival action include medical expenses, lost wages, and future lost wages as well as punitive damages to punish someone for the negligence that led to the death of your loved one.

Filing Both Claims

In some situations, you can file both types of claims together in civil court. This allows you to pursue all potential damages to help ease the financial burden of someone else’s negligence. It is important to note that you only have a limited amount of time after a person’s death to file either lawsuit.

For wrongful death, you have two years to file your claim. (CCP 335.1) For a survival action, CCP 366.1 allows the cause of action to be brought either within two years of the accident causing fatal injury, or six months after the person’s death, whichever is later. However, you should always speak to an attorney to find out which is applicable in your case. If a government entity is involved the time periods may be substantially shorter.

Losing a loved one is difficult enough without having to worry about medical bills and other costs. If another person’s negligence caused the death of your loved one, do not suffer in silence. Call us today at NordstrandBlack PC at (805) 962-2022 to tell us about your situation and learn about your options.

Posted in: Wrongful Death