Wrongful Death The Right Way: Important Considerations for Dealing With A Lawsuit Arising From Death: Does The Suit Allege A Cause of Action For Wrongful Death, Survival, Or Both?

Author: Robert Tyson

A civil lawsuit that is brought as a result of the death of an individual allegedly caused by willful or negligent conduct of another can be framed as a wrongful death cause of action, a survival cause of action, or both. Wrongful death and survival actions differ with regard to standing requirements and recoverable damages. This article will discuss the procedural differences and their impact on your litigation.

  1. Overview of Wrongful Death vs. Survival Causes of Action

A survival action is for the decedent’s causes of action that survive his or her death. A survival cause of action arises from Code of Civil Procedure section 377.34 [formerly Probate Code section 573]. It provides that a decedent’s causes of action survive his death and allows for recovery of loss or damages that the decedent incurred prior to his death, including punitive damages. Such a cause of action must be brought by a decedent’s personal representative or if none, by the decedent’s successor in interest.

On the other hand, a wrongful death suit is the decedent’s heirs cause of action to allow the heirs to be compensated for their loss of the decedent. A wrongful death cause of action is created by Code of Civil Code section 377.60. The public policy behind such a cause of action is that the survivors, most of whom will have depended on the decedent for some form of support, should be compensated for the loss of support by the person who is negligently or willfully responsible for the death. Punitive damages are typically not recoverable in a wrongful death case.

  1. Who May Bring a Wrongful Death vs. Survival Cause of Action: Who Has Standing?

A. Standing for Survival Action

Standing for a survival action is statutory. Where there is a personal representative of the decedent’s estate, only the personal representative of the estate has standing to bring a survival action for the decedent’s causes of action that survive his death. If no personal representative exists, then standing passes via the rules of intestate succession under Probate Code section 6402, which is further discussed below.

B. Standing for Wrongful Death

Section 377.60 of the Code of Civil Procedure sets forth standing requirements for a wrongful death cause of action. It provides the following people have standing to bring a wrongful death cause of action: “the decedent’s surviving spouse, domestic partner, children, and issue of deceased children, or if there is no surviving issue of decent, the persons . . . who would be entitled to the property of the decedent by intestate succession.” If they were dependent upon the decedent, the following also have standing for a wrongful death cause of action: the decedent’s parents, stepchildren, putative spouse, children of putative spouse, and any minor residing in the house for 6 months or more.

“Intestate succession” for wrongful death standing purposes is the same as “intestate succession” that applies for transfer of property upon death under the Probate Code, which is section 6402.
Where the decedent has no surviving spouse, domestic partner, or children, the chain of intestate succession is as follows under Probate Code section 6402:

(a) To the issue of the decedent, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take in the manner provided in Section 240.

(b) If there is no surviving issue, to the decedent’s parent or parents equally.

(c) If there is no surviving issue or parent, to the issue of the parents or either of them, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take in the manner provided in Section 240.

(d) If there is no surviving issue, parent or issue of a parent, but the decedent is survived by one or more grandparents or issue of grandparents, to the grandparent or grandparents equally, or to the issue of those grandparents if there is no surviving grandparent, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take in the manner provided in Section 240.

(e) If there is no surviving issue, parent or issue of a parent, grandparent or issue of a grandparent, but the decedent is survived by the issue of a predeceased spouse, to that issue, the issue taking equally if they are all of the same degree of kinship to the predeceased spouse, but if of unequal degree those of more remote degree take in the manner provided in Section 240.

(f) If there is no surviving issue, parent or issue of a parent,
grandparent or issue of a grandparent, or issue of a predeceased spouse, but the decedent is survived by next of kin, to the next of kin in equal degree, but where there are two or more collateral kindred in equal degree who claim through different ancestors, those who claim through the nearest ancestor are preferred to those claiming through an ancestor more remote.

(g) If there is no surviving next of kin of the decedent and no surviving issue of a predeceased spouse of the decedent, but the decedent is survived by the parents of a predeceased spouse or the issue of those parents, to the parent or parents equally, or to the issue of those parents if both are deceased, the issue taking equally if they are all of the same degree of kinship to the predeceased spouse, but if of unequal degree those of more remote degree take in the manner provided in Section 240.

The effect of these statutes may be seen in the example of an adult decedent who supported only himself and had no spouse/domestic partner or children. Standing would be conferred by intestate succession based upon the wrongful death statute, and the pertinent portion of Probate Code section 6402 would be “. . . if there is no surviving spouse, passes as follows . . . (b) if there is no surviving issue, to the decedent’s parent or parents equally.”

Thus, where a decedent only supported himself and had no wife or children, his parents would be entitled to his property by intestate succession. Therefore, under this example, a decedent’s parents would be the persons having standing for wrongful death, presuming both were still alive. Otherwise, only the surviving parent would have standing.

  1. What Damages Are Recoverable In A Wrongful Death vs. Survival Case?

A. Damages Recoverable in Survival Action

In a survival action by a decedent’s personal representative or successor in interest on behalf of the decedent, the damages recoverable are limited to the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement.

The recoverable damages include lost earnings, property damage, and medical bills. Punitive damages are only recoverable where the decedent survived the accident, however briefly, or if the property of the decedent was damaged or lost before death. In other words, punitive damages are not recoverable where the decedent dies contemporaneously with the act and/or his property is damaged contemporaneously with the act.

B. Damages Recoverable in Wrongful Death Action

Damages for wrongful death include not only losses of an ascertainable economic value such as loss of household services or earning capacity, but also the loss of the decedent’s love, society, companionship, comfort, moral advice, care and protection.

Thus, the monetary loss recoverable in a wrongful death suit may be a loss arising from deprivation of something to which the heirs would have been legally entitled had decedent lived, such as financial support. The recoverable monetary loss may also arise from a deprivation of benefits the heirs could reasonably have expected to receive from the decedent, such as the value to minor children of advice and training.

In addition, funeral and burial expenses are normally allowed as damages in a wrongful death action, even if paid by workers’ compensation or some other fund, unless for some reason benefits from the collateral source become admissible.

Punitive damages are not recoverable under a wrongful death cause of action, absent a single exception. The one exception allowing decedent’s heirs to recover punitive damages for wrongful death is where the death resulted from a homicide for which the defendant was convicted of a felony.

  1. Making Appropriate Challenges to Complaints Arising from Death

Now that you are aware there are two types of causes of action arising from a death allegedly caused by the negligent or willful conduct of another, you must make sure to properly identify the causes of action and assert the appropriate defenses.

1. Analyze the causes of action.

Does the complaint allege a cause of action for losses of the decedent incurred prior to death by the personal representative (survival action), the losses of the heirs as the survivors of the decedent (wrongful death), or both. If it is unclear from plaintiffs’ complaint which type of cause of action is asserted, you should considering filing a demurrer on the grounds of uncertainty, as well as failure to state a cause of action.

2. Make appropriate challenges to standing.

This can overlap with the previous issue. If it is unclear as to the basis upon which a particular plaintiff is named, this can create uncertainty as to the type of cause of action alleged. In this situation, be sure to include lack of standing as a grounds for demurrer in addition to uncertainty and failure to state a cause of action

3. Make appropriate challenges to the damage allegations.

Move to strike punitive damages. Punitive damages are not allowed in a wrongful death cause of action unless there is a homicide and conviction. Punitive damages are only allowed in survival actions where the decedent survived the accident and/or property damage did not occur concurrently with the accident. Depending upon the allegations of the complaint, the issue of punitive damages may require discovery, which would make the challenge to punitive damages an issue for summary judgment rather than a motion to strike.

If plaintiffs have alleged wrongful death, move to strike any damages that belong to the deceased. If plaintiffs have alleged a survival action, move to strike any damages that belong to the heirs.

If you are filing a demurrer on the grounds of failure to state a claim and uncertainty because it is unclear whether plaintiffs are alleging a wrongful death or survival action, consider challenging all of plaintiffs’ damage claims via a motion to strike because the damages recoverable under each cause of action are mutually exclusive.

Finally, be sure to preserve the argument that plaintiffs failed to name all necessary parties. You do not want to settle a death case with less than all the persons who have standing to bring a viable claim. This issue should be raised as an affirmative defense in the Answer.

ABOUT THE AUTHOR: Bridgette Webster is a 2002 graduate of U.C. Hastings College of the Law. Her practice focus is on defense of high-exposure medical malpractice cases. She is currently the head of Heath Care Practices at Tyson & Mendes, LLP. Contact her at bwebster@tysonmendes.com.

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