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Page 8 of 10 |
What if the person dies before a lawsuit is brought? |
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In general, a "survival statute" preserves a victim's cause of action against a defendant after the victim dies. This allows the estate or surviving dependents to assume the victim's cause of action against the defendant until the matter is settled or tried. The available damages in a survival action include all the damages available to the actual victim had he or she survived.
In contrast, a wrongful death claim is a new cause of action which arises from the victim's death, is brought by the surviving beneficiaries or dependents of the deceased victim, and has different types of damages.
For example, Victim (married with two children) is injured in a severe automobile accident, caused by the negligence of Defendant. Victim is hospitalized and sues Defendant. Before Victim's case is heard, Victim dies as a result of the injuries sustained in the auto accident. Victim's surviving spouse may "step in" and pursue Victim's claim against defendant. The surviving spouse and children may also be able to pursue a separate wrongful death claim against Defendant for their damages incurred in Victim's death. While these claims are separate, they are frequently consolidated together by the court before trial.
Again, there are variations in each state as to wrongful death claims and survival statutes. Some states have consolidated these separate claims into one hybrid statute, while others have restrictions or conditions on one or both.
This is complicated but can be made easier with the help of an attorney. |
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