A “survival action” is a lawsuit that arises from the death of a loved one. Like a wrongful death lawsuit, a survival action seeks compensation for the death of an individual due to the negligent acts or wrongful conduct of another. A survival action is advanced on behalf of the deceased by his or her estate as if that person were still alive.
A survival action is different than a wrongful death lawsuit. In a wrongful death lawsuit each family member is only claiming compensation for the particular harm caused to them due to the death. In other words, the family members are claiming compensation for their own losses due to the death of a loved one in wrongful death lawsuit. This includes the loss of love, companionship, support, etc. The family members may also claim compensation for the pain, grief, sorrow, anguish and stress that the death caused them personally. Click here to learn more about Arizona wrongful death lawsuits.
A survival action, on the other hand, allows a lawsuit to be advanced on behalf of the deceased individual for his or her losses. In other words, a survival action allows the claims of the deceased to proceed as if he or she survived the injuries that caused his or her death. Arizona Revised Statutes 14-3110 sets forth “Every cause of action…shall survive the death of the person entitled thereto or liable therefor, and may be asserted by or against the personal representative of such person, provided that upon the death of the person injured, damages for pain and suffering of such injured person shall not be allowed.” Although the deceased will not benefit directly from the compensation received, his estate and loved ones will. Who receives compensation from a survival action depends on who is qualified to inherit or be paid benefits from the estate of the deceased. This may be controlled by a written will or other written instrument. If the deceased died without a will, Arizona state law will usually control who stands to inherit and how much.
The damages that may be recovered in a survival action are limited. The estate of the deceased may not recover damages for the pain and suffering that the deceased experienced before his or her death. The right to claim compensation for pain and suffering die with that individual. However, the estate can claim damages for the medical expenses that the individual incurred prior to his or her death as well as any money expended due to the injuries that the deceased suffered. More importantly, the estate can claim the lost earnings of the deceased. In other words, the estate can claim the income that the deceased would have made over the course of his remaining natural working life.
Since the exact age to which someone will work is unknown, courts and insurance companies usually use an average retirement age such as 65 years old. However, the exact retirement age used may depend on the type of profession someone is in. For example, a 35 year old man who is expected to work until the age of 65 and is earning $50,000 per year would have a potential lost earnings claim of $1.5 Million dollars (30 remaining years of work x $50,000/year). In addition to this, a claim can be made for the increases and raises in salary as well as bonuses and benefits. A claim can also be made for the lost social security income the individual would have been entitled to from his retirement to the end of his natural life. Again, in calculating this, courts and insurance companies will consider the average estimated life expectancy of the individual as published in federal life expectancy tables (also called actuarial tables).
The time in which to bring a survival action is controlled by Arizona Revised Statute 14-3109. This section sets forth: “Upon the death of a person in whose favor there is a cause of action which has not been barred as of the date of his death, the limitation of the action ceases to run until a personal representative is appointed or until twelve months after the death, whichever first occurs, but shall not bar such action sooner than four months after death even if a personal representative is appointed earlier.” Since a survival action may be barred entirely if a lawsuit is not timely brought, it is essential that you consult with an attorney in any situation involving a life-threatening injury.
If you or a loved one has experienced the loss of another and believe that a survival action should be filed, contact Scottsdale Injury Lawyers today. Our personal injury attorneys are available now to answer your questions and provide advice. We will provide a free consultation and give you our opinion as to what steps you should take to see that the greatest compensation is recovered for your tragic loss.