Wrongful Death Survival Actions

When someone’s negligence brings about the death of a loved one it can be emotionally and financially draining on those left behind. Whether you have lost a caregiver, child or primary income earner it can be difficult to fill the void. While no one can ever replace a loved one, our laws provide for money damages to help families bridged the gap by compensating them for medical bills, funeral expenses, lost earnings, pain and suffering and even loss of companionship to name only a few.

When someone has died there are two causes of action that may be available to help families become whole again. These lawsuits are generally available to the families and representatives of individuals who have died as a result someone else’s negligence, wrongful acts, or a defective product. See CPRC 71.002.

The Texas Survival Statute

The first of these is the Texas Survival Statute. This statute allows an estate, heirs or legal representative to bring a survival action.  CPRC § 71.021(b). The Survival Statute is so named because it allows a personal injury lawsuit to “survive” the death of a person and is prosecuted in the same manner as an ordinary personal injury lawsuit where the injured person had lived. CPRC §71.021(c). Thus, damages such as lost wages, medical bills, property damage, funeral expenses and the like are available under this statute and the recovery will be given as part of the deceased’s estate.

Wrongful Death Action

Woman sitting at grave with hands in pockets

In contrast, a wrongful death action is a lawsuit available to a surviving spouse, children, and parents of the deceased. CPRC § 71.004. The deceased may be any person including a child not born alive. CPRC 71.001(3). Under the Wrongful Death Act, beneficiaries are able to recover personally for the damages they incur as a result of the loss of their loved ones and not the actual injuries sustained to the deceased as in a survival action.

Importantly the law is strictly construed to only allow recover to surviving spouse, children and parents of the deceased.

As these cases can stretch on for a long time, sometimes the surviving spouse, children or parents pass away before the resolution of the case.  Unfortunately, under the current state of the law, there would not be any damages available to the family or estate of the deceased spouse, child or parent.

It is important to note that many of the laws that restrict the just and rightful compensation for injuries and damages have been either made or interpreted by elected officials or appointed by elected officials who claim that they are “tort reformers.”  In many cases, tort reform is just another word for having the government stop people from letting a jury decide what is just and fair.

In many cases, a beneficiary of a wrongful death action and a survival action may be the same and two lawsuits may be brought for the same injurious conduct. In any wrongful death case, what can be recovered is highly fact-sensitive and depends on a number of factors that attempt to place a monetary value on both tangible and intangible benefits that were lost upon the death of your loved one.

In all personal injury cases, it is important to seek the advice of an injury attorney as soon as possible after an injury has occurred. This is because the law only provides a short period of time after an accident to bring a lawsuit; this is called the limitations period.

In a survival action, the limitations period is the same as the personal injury action that could have been brought if the deceased person was alive, but, that limitations period is “tolled” for up to one year after the date of death. CPRC § 16.062. When a limitations period is “tolled”, it means that the law will not count that time period when determining whether or not a representative has waited too long to bring a lawsuit. However, if there is an executor or administrator named during the one year period following the date of death, the limitations period will start running again. CPRC § 16.062(b).

In a wrongful death action the limitations period is generally two years after the death of the victim, but may be longer depending on the type of conduct that caused the death. CPRC §§ 16.003, .004, .0045, .008, .009, .0012.

For instance, the limitations period may be extended for an additional two years for a claim resulting from a defective product. Tex. Bus. & Com. Code § 2.725. In the case of a minor child, the statute of limitations is “tolled” until that child reaches the age of majority. CPRC 16.001(a)(1). Such tolling of the limitations period applies only the minors cause of action and other beneficiaries are not entitled to rely on this time period.

The effect of the limitations period on a wrongful death or a survival action is the same, a lawsuit cannot be brought after the end of that period has run and will be forever barred. That is why it is important for an injured family to seek the advice of a competent attorney as soon as possible after the death of a loved one or valuable rights may be lost.

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Talk to an Experienced Attorney

Wrongful death lawsuits are extremely complex.  From the procedural aspects, to the legal issues and difficulties monetizing the value of damages, wrongful death and survival cases present a very complex set of issues. Therefore, it is critical that only experienced attorneys handle such matters. Contact us today and book your FREE case consultation!