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How Do Wrongful Death Actions Compare with Survival Actions?

A survival action is a civil lawsuit that survives an individual’s death and is brought by the decedent’s estate for personal damages the decedent suffered before dying. Recoverable damages are the same as in a personal injury lawsuit, which is brought when the person is still alive. In contrast, a wrongful death action is a civil lawsuit to recover damages for surviving family members brought by an attorney acting on behalf of the deceased person’s estate.

Under the Florida wrongful death statute, if the survival action pursues damages related to the injury that caused the person’s death, then the survival action does not survive after the person’s death. For example, a man suffered paralysis caused by a negligent party who ran a red light and crashed into his car. He sued for damages. However, because he died from injuries sustained in the car accident before the case resolved, upon his death the action no longer survives. Even so, his estate can now pursue a wrongful death action against the negligent party who caused his death. Any other civil action individuals pursued to recover damages, which is not related to the fatal injury, survives their death. An example is a lawsuit filed earlier for a dog bite injury (which wasn’t a cause of death).

A Florida Supreme Court decision, in a case heard in 2008, added a new way to look at survival and wrongful death actions. Under the state’s Nursing Home Residents’ Rights Act (NHRRA), surviving family members can choose between a survival action brought under the NHRRA and a wrongful death action. They can choose whichever legal action brings a larger recovery. However, when the NHRRA doesn’t apply, the personal injury action ends upon the death of the injured party, based on the Wrongful Death Act. At that point, the wrongful death action becomes the only recovery option your lawyer can take.

A knowledgeable law firm can answer your questions about a loved one’s wrongful death and provide you with valuable legal guidance and representation.

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