Losing your loved one will be a tragic experience for your entire family. But when a careless person’s negligence kills your loved one, you will experience a range of emotions, including grief, sadness, angering even the most peaceful person (Read more). If you act on your dark desire for vengeance, you and your family will face even more severe legal, emotional and financial tolls. Bereaved, justice-seeking survivors and heirs will be restricted to pursuing civil money damages from the killer or their estate. The state decides the killer’s physical punishments, assessments, and penalties.
Both lawsuits allow survivors to pursue claims, but each has significant differences, purposes, and financial recovery mechanisms. You must understand the differences between a wrongful death claim and a survival action. But your decision-making process will be difficult, your judgment clouded with grief from mourning. Your life will become tough. And your negative feelings will be magnified knowing your loved one died by the hand of a negligent party or parties.
Michael Ehline, Los Angeles wrongful death attorney, will discuss these California state law causes of actions, which are statutory creatures, interpreted by judge-made stare decisis, and included in the California Survival and Death Jury Instruction below.
Table of Contents:
The primary distinctions are:
Now you know some CCP 377.60 wrongful death action distinctions when comparing an estate’s survival claim filed utilizing section 377.30. Here is everything researchers and victims must understand about these actions.
You, as the dead victim’s survivor, may have wrongful death claims, determined on a case by case basis!
*A wrongful death action is a process a plaintiff will follow to invoke the wrongful death statute as a basis for this plaintiff recovering an award of monetary damages.
The three “elements of the cause of action for wrongful death are  the tort (negligence or other wrongful act),  the resulting death, and  the damages, consisting of the pecuniary loss suffered by the heirs.” [Emphasis] (See e.g., Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968).
California wrongful death law presents several common questions, such as:
The chosen personal representative of the decedent’s estate must file the lawsuit. Their closest surviving relative will normally file a wrongful death action, with a wrongful death lawyer acting as the personal representative’s proxy. But larger families will take a vote determining who the family’s personal representative should be, assuming the deceased left no testamentary documents, excluding an estranged family member.
In any case, surviving family members argue over or fail to select a personal representative; courts will use a common-sense lead litigant selection process while applying the statute.
Many potential wrongful death plaintiffs are mentioned under Code of Civil Procedure Section 377.60 and described below.
Damages allowed in a wrongful death case will largely depend upon the age and social status of the dead and the surviving victim. For example, Vanessa Bryant filed a California civil lawsuit, and she is currently litigating over Kobe’s death. (See CACI No. 3921 – Wrongful Death of an Adult; [CACI pain and suffering]). Also, Vanessa seeks to recover damages from her loss of Gianna Bryant, her minor child. (See also CACI 3922 – Damages for Wrongful Death of a Child).
Your financial or pecuniary loss will be included as wrongful death payments. (See McKinney v. California Portland Cement Co. (2002) 96 Cal.App.4th 1214, 1231-1232). The damages … fall into two categories called:
1. The loss of decedent’s love, companionship, comfort, care, assistance, protection, affection, society, moral support;
2. The loss of the enjoyment of sexual relations;
3. The loss of decedent’s training and guidance.
In determining plaintiff’s loss, the jury must NOT consider PAIN AND SUFFERING:
1. …plaintiff’s grief, sorrow, or mental anguish;
2. …decedent’s pain and suffering; or
3. The poverty or wealth of plaintiff.
General emotional trauma is not a loss for which a defendant must pay a plaintiff compensation, and the trial judge will admonish jurors to ignore plaintiff or decedent’s pain, suffering, grief, or sorrow.
Expert witnesses, including financial planners, will regularly valuate these damages.
The deceased’s children might be entitled to wrongful death damages for loss of guidance and nurture (this is exactly what it sounds like). The survivors may recover the dead person’s funeral, memorial/burial expenses *(Some jurisdictions may consider these “survival damages“).
A survival action is a process a decedent’s estate or official representative will follow to invoke the survival statute as a basis for recovering an award of specific monetary damages either in or out of court.
The dead person’s personal injury and related survival action claims will pass to their [decedent’s] estate, and their beneficiaries will typically receive net amounts after creditors like hospitals, secured and unsecured debt like funeral home contracts are paid off from estate proceeds.
Several common questions present themselves under California survival action law, such as:
Only the Probate Court can appoint a personal representative after filing a Petition for Probate and notice to the interested persons. A survivor’s lawsuit will normally be filed in a local California Superior Court if parties fail to make a good faith settlement resolution or accord. A cause of action that survives the person’s death will pass to the decedent’s successor in interest, enforceable by the “decedent’s personal representative or, if none, by the decedent’s successor in interest.” (Code of Civil Procedure Section 377.30).
Wrongful death distinguished: Only people mentioned in the statute will be entitled to recover wrongful death damages under section 377.60. Any person capable of receiving an inheritance, mentioned in a will or trust may be a survivor. This person might be entitled to portions of the decedent’s estate. (See, e.g., California Code of Civil Procedure Section 377.30 (claims passed to the dead one’s successors in interest.)).
California’s survival laws will generally allow the estate to receive money damages the deceased incurred from their injury until their death. (See also CALIFORNIA LAW REVISION COMMISSION PDF (1960)).
In the typical survivor’s action, “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.” (California Code of Civil Procedure Section 377.34).
In particular, job-related fringe benefits the dead person would have provided are a major component of survival actions. These are called economic, or special damages. General damages are typically barred as losses.
But their estate can recover medical expenses and lost earnings incurred by the deceased before death. Sometimes the estate’s representative will seek and win an award of exemplary or “punitive damages.”
These statutes can increase confusion, especially when you seek special damages elements referred to as “loss of accumulations to an estate” and “investment accumulations.”
Decedent’s estate under all cases will be entitled to recover all damages listed in California Code of Civil Procedure Section 377.61.
The general negligence standard of proof for both actions will be based upon the:
But if plaintiff filed mixed bag claims for fraud or punitive damages,
So if you were to look at a scale, the civil case preponderance of proof standard would be a slight tilt of the scale in your favor. But a punitive damages claim will require the presentation of clear and convincing evidence, mandating a greater tip of the justice scale.
For crimes, you can be locked away in city, county, state, or federal prison. Because you risk jail-time, courts will employ a higher standard of evidence called “beyond a reasonable doubt standard.” Of note, O.J. Simpson won his criminal murder trial. But another jury held O.J. accountable. The civil jury saw evidence that criminal judge Lance Ito had excluded. This evidence clearly established that O.J. Simpson had killed Ronald Goldman.
NOTE: Plaintiffs must follow the civil rules requiring clear and convincing evidence to seek extraordinary damages award amounts. Judges often say this burden is higher than the civil preponderance of evidence standard, with CACI indicating it falls underneath the heightened criminal guilt “beyond a reasonable doubt standard.”
Your wrongful death award is normally yours, but many people suffering an accidental death will leave behind unpaid debts. You are not always responsible for paying the dead one’s creditors unless you secured a community debt. Generally, creditors seeking monies owed will file claims against the decedent’s estate.
A person who dies will have their assets, including bank accounts, possessions, and real property, transferred into their “estate” as a matter of probate law. A creditor’s lawsuit to set aside fraudulent, unduly influenced property transfer, property recovery, elder abuse case, Title 42 U.S.C. § 1983 civil rights claim, post-judgment marital dissolution, including property rights, spousal or child support, court fees, and other costs are examples of creditor claims surviving death.
Decedent’s pain and suffering damages are an example of damages that will not survive death. Other claims not surviving a death will include decedent’s marital dissolution claim during the pre-judgment phase, invasion of the right to privacy claims, punitive damages claims, emotional distress claims. (See also CACI No.’s 3940, 3945, 3947, 3948).
Upon a person’s death, a court will use a legal process to pay your creditors. This is the probate process used to distribute your estate’s remaining assets. The legislature has authorized statutory time periods for creditors seeking to file claims against your estate, ranging from a few months to several years.
However, decedent’s funeral expenses will normally be priority payment items. Next, your estate’s administration fees, followed by taxes owed, will be covered. Hospital and medical bills will be included as priority payment items in California State. Still, as noted, not all assets will be counted as part of a dead person’s estate.
Historically, no lawsuit existed allowing survivors or personal representative of the estate to obtain compensation for an accidental mortality claim under our English “common law” system. Instead, early courts adhered to the maxim: “actio personalis moritur cum persona,” meaning torts expired with the victim’s death or tortfeasor. (Survival of Actions Brought under Federal Statutes. (1963). Columbia Law Review, 63(2), 290-305. doi:10.2307/1120813).
Early legal scholars explained that death claims died with the decedent(s). A personal injury claim only held the wrongdoer monetarily accountable for a live victim, so killing the victim made more sense to avoid financial repercussions. But these negligent killings prompted generations of families to seek revenge.
However, ex contractu claims, including certain torts like conversion, survived death, meaning that estates could enforce and be enforced upon in certain cases involving an injury. Undoubtedly, Scottish jurisprudence influenced modern North American damage action claims on behalf of the deceased who died during the performance of a contract. (See James v. Christy (1853) 18 Mo. 162, distinguished here).
Early America adopted the no monetary recovery for death English common law rules. After all, we were an English colony. The early American Hatfields and McCoys blood feuds are included as examples where the evil-doer facing criminal confinement or punishment also escaped civil court justice.
More progressive states realized that eye for an eye was not working. Ultimately, most American states condemned this unfair, dangerous legal loophole allowing wrongdoers to escape financial repercussions. Many legislatures enacted “wrongful death” and “survival” statutes intending to prevent revenge killings. Modernly, most states offer some form of wrongful death recovery. These sovereigns will follow general tort law guidelines, each state passing its own exclusive “wrongful death” claim or “survival” action statute.
Death is an inevitable process that will eventually occur in all human organisms, and since the early 21st century, at least 150,000 humans have died every day worldwide.
Some phenomena commonly causing or leading to natural death will include:
But sometimes, another person’s inattentiveness or outright murderous conduct will lead to death caused by:
Yes, they are! Car accidents on freeways and roads can cause significant trauma, resulting in fatal injuries. As you already know, when someone wrongfully kills someone on a motorcycle or runs over a person walking in a crosswalk, the negligent motorist, or a person negligently entrusting the vehicle, can be held criminally responsible and civilly liable in a court of competent jurisdiction.
Date of Death: The SOL cannot commence until death. (Arroyo v. Plosay (2014) 225 Cal.App.4th 279, 289-295; Larcher v. Wanless (1976) 18 Cal.3d 646, 659).
Your wrongful death action SOL clock will begin its two-year countdown as soon as your loved one passes away (not from the act or injury causing death): “For it is only on the date of death that a wrongful death cause of action becomes complete with all of its elements.” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 404; Kincaid v. Kincaid (2011) 197 Cal.App.4th 75, 80-81). The death statute will only authorize a lawsuit if there is a death. Sometimes an expiration date later than actual death may be authorized to join a claim. (See below).
What About Other Wrongful Death Suits?
If the plaintiff dies before the applicable limitations period is extinguished, an action may be commenced before later of the following times expire:
(a) Six months after the person dies.
(b) The standard time limitations period that would have applied if no one had died. (Code of Civil Procedure Section 366.1).
CAVEATS / WARNINGS:
Because SOL issues will be complicated, including local and state court rules, and cases interpreting these rules could be misunderstood, causing your to blow the statute unless another exception can extend it. But don’t just rely on this article, do your research.
For humans, death will always remain a sad or unpleasant occasion.
If you lose someone’s affection after the termination of social and familial bonds, you will experience:
If you are with the deceased person on their death’s bed, you will feel sympathy, compassion, solitude, or Saudade. And the dying person’s feelings will be magnified when they come from a religious culture that seeks an afterlife. These are people who believe they will either be judged or rewarded for their good deeds, or they will receive punishment for their sins, potentially increasing their fear of death, known scientifically as “necrophobia.”
A Los Angeles wrongful death attorney such as Ehline Law’s charismatic lead counsel, Michael Ehline, will help you better understand your case. You deserve to know what damages can and cannot be compensated, as well as protect your rights.
You must immediately seek a free initial consultation and legal advice from a top-notch California lawyer. Don’t do this by yourself. When big companies and the government defend against wrongful death claims, these practitioners will file motions to strike, demurrers, and other pleadings to try and dispose of your financial compensation claims. And these litigators will mail you targeted discovery questions and depose you to undermine your remaining claims in these types of cases and types of claims.
We hope you enjoyed this article describing the similarities and differences between wrongful death actions and survival claims. We invite you or the estate’s representative to learn about our law firm’s impressive track record. Let’s see if we are fit for an attorney-client relationship today. Click our below contact form, or call our Los Angeles personal injury attorney at (213) 596-9642.
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