If a victim dies as the result of a personal injury action, his or her estate can bring a wrongful death lawsuit or a survival action. But what is the difference between these two lawsuits? The wrongful death laws allow the estate to receive damages for the beneficiaries of the deceased. The survival laws allow the estate to receive damages the decedent could have recovered if he had not died (i.e. pain and suffering and lost earnings).
Specifically, what happens if a victim files a personal injury action but dies before final adjudication of the claim? If the victim dies before the claim is adjudicated, his or her injury cause of action generally “survives” to the estate and may be prosecuted by a duly appointed executor or administrator for the estate. If there is no executor or administrator, the action may be prosecuted directly by the victim’s “successor in interest,” meaning the beneficiary of the victim’s estate or other person who succeeds to the cause of action. (C.C.P. §§ 377.11, 377.30; see Adams v. Super.Ct. (Centinella Freeman Regional Med. Ctr.) (2011) 196 Cal.App.4th 71, 78-79.)
The “survival” statute applies to any cause of action the decedent had at the time of his death, including contract claims, property damage claims, and claims against the decedent’s liability insurer for breach of the implied covenant of good faith and fair dealing. (C.C.P. § 377.20(a).) The survival claims are subject to the applicable statute of limitations period. (Id.) For example, the decedent’s injury or wrongful death claims which survive to the estate are normally governed by the C.C.P. § 335.1 two-year limitations period. However, if the plaintiff dies before expiration of the applicable limitations period, the statute of limitations starts running on the date the claim actually arose to the decedent or six months after the person’s death. (C.C.P. § 366.1.)
A “survival” claim brought by the estate does not have the same value if the decedent had lived. All decedent’s pecuniary damages incurred prior to death, including medical expenses, lost earnings, and punitive damages, are recoverable. The estate cannot recover “post-death” damages. However, the estate is not entitled to an award for decedent’s pain or suffering. (C.C.P. § 377.34; see County of Los Angeles v. Super.Ct. (Schonert) (1999) 21 Cal.4th 292, 295-296.) Similarly, the estate cannot recover emotional distress damages. This precludes the decedent’s estate from bringing an action for negligent or intentional infliction of emotional distress. (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 530.)
ABOUT THE AUTHOR: Kelly Denham graduated from Loyola Law School in 2012. Ms. Denham’s primary focus at Tyson & Mendes is construction defect litigation. Contact Kelly at 858.263.4117 or firstname.lastname@example.org.