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Losing a loved one is always tricky. When a loved one dies as the result of someone else’s negligence, the loss can feel even more significant. State law provides two ways to recover financially from people whose negligence contributed to a loved one’s death—wrongful death action and survival actions. You may be able to bring one or both types of actions, depending on the circumstances of the death and your relationship to the deceased.
Many people believe that wrongful death lawsuits and survival actions are identical lawsuits. While the death of someone triggers each type of lawsuit, they are not the same. Surviving family members bring wrongful death lawsuits to seek compensation for personal harm they experience as the result of the loved one’s death. Heirs or personal representatives bring survival actions to seek the compensation that the deceased was entitled to but unable to seek because of their death. A Houston survival actions lawyer can examine the facts and let you know whether you have a potential survival action, wrongful death claim, or both.
Under Texas Civil Practice & Remedies Code § 71.021(b), a representative for the deceased can bring a survival action. Representatives can include heirs, a legal representative, or the estate. The representative does not bring a lawsuit on their behalf but on behalf of the deceased. The representatives seek compensation for the injuries done to the deceased, not for the impact that those injuries have on the survivors.
Survival actions can contain any of the damages of any other personal injury case, including pain and suffering, medical bills, lost wages, and property damage. They can also include funeral costs, a type of damages unavailable in most personal injury lawsuits.
To be eligible for a survival claim, the deceased has to have survived the incident that forms the basis of the claim. For example, suppose a person is injured because of a physical assault and would have a personal injury lawsuit. In that case, their representative can bring that claim even if the deceased’s death was from a different source.
Instead, the law provides that a cause of action for a personal injury does not decrease because of the death of either the deceased person or the person who charged the injury. A representative can bring a lawsuit on behalf of a deceased. Furthermore, a victim can bring a lawsuit against the estate of a deceased tortfeasor. A Houston lawyer can help explain whether a person has a survival action.
The wrongful death statute, Texas Civil Practice & Remedies Code § 71.002, is an entirely different type of lawsuit. The family survivors of the deceased may bring a lawsuit, and they do not have to be named heirs or personal representatives to do so. They are not bringing a lawsuit to recover damages to the deceased, but to recover for their damages because of the harm that not having the deceased still alive does to them.
These harms can be both financial and emotional. For example, the loss of a family’s wage earner can be financially devastating for a surviving spouse, children, or other dependent family members. A wrongful death lawsuit would seek compensation for those lost wages. It can also be emotionally devastating, so damages for loss of companionship try to place a monetary value on that person.
One of the main differences between a wrongful death lawsuit and a survival action in Houston is that the deceased’s personality does not matter in a survival action. Whether the deceased was the world’s best or worst parent, they would still be entitled to compensation for a personal injury, and that claim survives their death. However, in a wrongful death claim, the better the person was, the more significant the survivor’s loss.
One of the exciting things about wrongful death claims is that only surviving spouses and children can recover. There is no survival action for a wrongful death claim—if the deceased’s survivors pass, the cause of action does not pass to their estate.
The loss of a loved one can be overwhelming. It can be tempting to try to ignore the loss. However, the statute of limitations for most survival actions and wrongful death claims is two years. The two years do not begin at the time of the injury but at the time of the death. To learn more about bringing either of the claims, schedule a consultation with a Houston survival actions lawyer.
Lone Star Injury Attorneys, PLLC
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