When you lose a loved one unexpectedly, and you suspect another person is at fault for their death, it is a good idea to speak with a survival action and wrongful death lawyer as soon as possible. By working with an attorney, you have someone with legal knowledge and a keen eye to investigate and analyze the circumstances surrounding your relative?s passing. An attorney will gather evidence of the fatal accident and determine if another person?s carelessness, recklessness, or intentional misconduct is to blame. If it is apparent that another party is to blame, then an attorney will advise you of your options. Depending on the situation, your family may have the right to pursue compensation through a survival action, wrongful death claim or both.
What is a Survival Action?
In many states, when a person passes away, any lawsuit they had the right to bring during their life goes away. The lawsuit was that individual?s right, and the compensation would have been for them. Now that they are gone, no one else can bring the lawsuit in their place. However, there are exceptions to this rule. Under Virginia law, there are several circumstances under which a person?s legal claim survives their death. These legal claims are known as survival actions.
Who Can File a Survival Action?
The personal representative of your relative?s estate will file the survival action or will take over the already occurring lawsuit after your loved one?s death.
Virginia?s Survival Action Law
The Code of Virginia ?8.01-25 states every cause of action that is recognized in Virginia survives the death of the person who could assert the legal claim, the death of the person whom the claim is against, or both. However, there is a limitation. Under a survival action during which the defendant is deceased, the plaintiff cannot seek punitive damages. These damages are meant to punish the wrongdoer, and are not intended to compensate the wronged party.
If the cause of action was a personal injury lawsuit and was brought during the deceased person?s life, and the decedent dies of the injuries asserted in the lawsuit, then the lawsuit will be amended to be brought by the personal representative of the decedent?s estate. In other words, if your loved one was injured in an accident and filed a personal injury lawsuit, but died of a cause related to those injuries, this lawsuit can continue. The personal representative, also known as the executor of their estate, will handle the survival action. This can be you, another family member, a close friend of your relatives, or a professional.
Examples of Survival Actions
Many types of legal claims in Virginia can survive an original plaintiff?s passing. Some examples of survival actions we handle at Lugar Injury Law include:
Third-Party Claims Following Workplace Accidents
?If your parent, spouse, or other relative was injured at work because of an outside party?s negligence, they might have quickly filed a third-party liability claim in addition to a workers’ compensation claim. However, if in the weeks or months following the workplace accident, your loved one never fully recovered and eventually passed away, the personal representative of their estate would take over the third-party liability lawsuit.
?Car, Truck, and Other Motor Vehicle Accidents
Your loved one may have been seriously hurt in a crash with a car, truck, motorcycle, or another type of vehicle. Your relative may have survived for days, weeks, or months after the crash, resulting in many medical bills, physical pain, and lost income before passing away. The personal representative of your loved one?s estate can pursue compensation on their behalf through a surviving personal injury claim.
What is the Difference Between a Survival Statute and a Wrongful Death Statute?
A survival action and a wrongful death action are not the same thing. Virginia?s survival action law allows for a person?s legal action to continue after their death. The claim arose during the person?s life, and remains largely the same as it would have been had the person lived. The compensation sought during a survival action is still the compensation the decedent would have deserved during their life.
A wrongful death action under the Code of Virginia ?8.01-50 through ?8.01-56 is much different. A wrongful death claim can only arise when a person passes away. A wrongful death claim focuses on the injuries suffered by the surviving close family members – not the decedent?s injuries. The compensation sought during a wrongful death claim is for the survivors and will go directly to them.
Because a survival statute and legal claim is different than a wrongful death statute and claim, you need to speak with an attorney before you file any lawsuits after your loved one?s unexpected death. Our survival action and wrongful death lawyers at Lugar Injury Law will carefully consider your circumstances, including whether another party is at fault for your loved one?s death and whether your loved one survived for days, weeks, or months after the accident before succumbing to their injuries. You may have a survival action to pursue, the right to file a wrongful death action, or both.
What Compensation is Available Through a Survival Action?
The compensation the personal representative of your relative?s estate will seek through a survival action will be the personal injury damages your loved one would have fought for had they lived. Such damages may include:
- Medical expenses accrued between the date of the accident and the date of your loved one?s death
- Lost wages that occurred between the date of the accident and date of death
- The value of your loved one?s pain and suffering between the date of the accident and date of death
- The value of your loved one?s mental distress between the date of the accident and date of death
It is important to understand compensation for a survival action is handled differently than the compensation obtained during a wrongful death lawsuit. Compensation obtained during a surviving personal injury lawsuit will go to the estate. It becomes part of the estate, and it will be distributed to your loved one?s surviving beneficiaries or heir based on your relative?s will or Virginia?s law. The compensation does not go directly to yourself or other relatives.
Virginia Survival Claims Statute of Limitations
A statute of limitations defines how long you have to file a specific type of legal claim. In Virginia, personal injury lawsuits need to be filed within two years of the date the injury was sustained. However, if your relative passed away after this date, the deadline for filing the survival action may be different.
If a personal injury suit was not filed during your relative?s life, then the personal representative may have two years from the date of the decedent?s injuries, or one year after they qualify as the personal representative of the estate.
Contact a Roanoke Survival Action Lawyer Today
If you have questions regarding a lawsuit your deceased relative filed or had the right to file prior to their death, call Lugar Injury Law right away. Our experienced survival action attorneys will review the circumstances and advise you of whether the personal representative of your loved one?s estate can move forward with the claim. Contact us today at (540) 384-0348 to schedule a free consultation of your case.