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In Lantana, the survival action case process is essentially no different than a regular personal injury case. The only difference is that a survival action is brought by the personal representative of the estate of the deceased, and the estate is entitled to recover damages in the place of the deceased person. The recoverable damages include their pain and suffering from the date of injury to the death, lost wages, and medical bills. For more information about the process, reach out to our compassionate survival action attorneys at Kogan & DiSalvo.
Initiating a Survival Action in Lantana
To initiate a survival action in Lantana, the first step is that an estate must be opened and a personal representative appointed on behalf of the deceased person. After a personal representative is appointed, the personal representative has the ability to enter into contracts on behalf of the estate, including the contingency fee contract for a survival action attorney.
Once the personal representative is appointed and they sign a contract with their chosen law firm, a lawsuit can be initiated on behalf of the deceased’s estate against the negligent party. After a survival action lawsuit is initiated, it proceeds the same way as any other personal injury lawsuit. The main difference between a survival action lawsuit and a general personal injury lawsuit is that since the injured person is deceased, the named plaintiff in the lawsuit is the personal representative of the estate.
Establishing Liability in a Survival Action Case
One of the critical aspects of the Lantana survival action case process is proving the elements of negligence by a preponderance of the evidence. Negligence is broken down into four elements:
- The defendant owed a duty to the decedent
- The defendant breached that duty
- The defendant’s conduct caused the decedent’s injuries
- The decedent suffered damages
Liability is established when the plaintiff has proven the first three elements of negligence: duty, breach, and causation.
After liability is established, the plaintiff in a survival action must prove their damages the same way that any personal injury plaintiff must. Damages may include but are not limited to, reimbursement for medical expenses, lost income, and the pain and suffering of the decedent from the date of injury until the date of their death.
Duration of the Survival Action Case Process
One major difference between a survival action and a wrongful death action is the statute of limitations that apply to each case. A survival action must be initiated within two years from the date of the injury. A wrongful death action must also be initiated within two years from the date of death.
Although it is impossible to predict exactly how long it will take to resolve a survival action, it is important to have patience. Sometimes claims can resolve immediately, whereas others take months or years to resolve. Each case is different and has many factors that influence the length of time to resolve.
Civil Court vs. Private Negotiations
Most survival actions begin as a private negotiation out of court. After hiring an experienced survival action attorney, that attorney will usually draft a demand letter to the insurance company for the responsible party. The demand letter will include the decedent’s medical records, bills, and calculations for pain and suffering. If the insurance company responds with a fair and reasonable offer, usually the claim can be resolved quickly and expeditiously through private negotiation.
When the insurance company is unreasonable and fails to offer a fair settlement, however, filing a lawsuit in civil court may be necessary. It is critical for a plaintiff to hire an experienced civil trial lawyer who is not afraid to file a lawsuit and take the survival action case to court should settlement negotiations fail. For a successful claim, a personal representative should contact an attorney with a full understanding of the Lantana survival action case process. Call our team at Kogan & DiSalvo when you are ready.
