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A survival action is a personal injury claim filed on behalf of an individual who is deceased, distinct from a wrongful death claim. A survival action is treated no differently than a regular personal injury negligence action in terms of investigation and resolution. The main difference is that an estate may need to be opened on behalf of the decedent and a personal representative appointed to proceed in a lawsuit.
A Lantana survival action lawyer could walk a decedent’s family through the process of bringing a survival action. An attorney could also recommend a local will and trust lawyer to help open an estate and appoint a personal representative. Let our compassionate Lantana wrongful death attorneys at Kogan & DiSalvo help you recover compensation.
Survival Action vs. Wrongful Death Claims
Although both survival actions and wrongful death claims are filed after an individual’s death, a survival action is slightly different than a wrongful death claim. In a survival action, the action is brought by the personal representative of the estate, and the death is unrelated to the negligence which caused the injury giving rise to the lawsuit. In a wrongful death action, the action is brought by the personal representative of the estate, and the death is caused by the negligence giving rise to the lawsuit.
In a survival action, the estate is entitled to recover monetary damages for the pain and suffering of the injured person from the date of their injury until their death, similar to a personal injury claim. In a wrongful death action, the estate is entitled to recover monetary damages for the pain and suffering of the decedent’s relatives from the date of the decedent’s death to the date of death of the relatives. In a wrongful death action, the estate can also recover for net accumulations, burial and funeral expenses.
Appointing a Personal Representative to an Estate
When a person dies intestate, meaning without a will, Florida Statute 733.301(1)(b) provides an order of preference for the appointment of a personal representative. The order is:
- Surviving spouse
- Person selected by a majority in interest of the heirs
- Heir nearest in degree
Florida law also governs persons who are specifically prohibited from serving as a personal representative. If a person has been convicted of a felony, is mentally or physically unable to perform the duties of a personal representative, or is under the age of 18 years, then they are not qualified to act as a personal representative. For more information, consult with a survival action lawyer in Lantana.
Recoverable Damages in Survival Action Claims
Damages in a Lantana survival action can be either compensatory or punitive. Compensatory damages are broken up into two different categories: economic and non-economic damages. Economic damages are objectively verifiable and include past and future medical expenses and lost past and future earnings, loss of use of property, costs of repair or replacement, and may include other out of pocket costs.
Non-economic damages are not quantifiable and are subjective and include non-monetary losses such as pain and suffering, inconvenience, emotional distress, loss of enjoyment of life, and loss of consortium.
Punitive damages are not awarded to compensate any loss and are instead meant to punish the defendant for intentional conduct. A skilled lawyer could help one with recovering damages.
Contact a Lantana Survival Action Attorney
Recovering compensation on behalf of an estate may be an important step to take after a loved one’s passing. If you have recently lost a family member, consider speaking with a Lantana survival action lawyer from Kogan & DiSalvo about the legal process. A survival action may allow you to hold those responsible for your loved one’s suffering accountable. When you are ready, reach out to an attorney.
