A survival action is a lawsuit where the family of a person that passed away advances the lawsuit as if the deceased was still alive. Usually a survival action is brought by the personal representative of the deceased’s estate. In other words, when an individual dies, his or her claims do not die with that person. This holds true even if the claims are completely unrelated to the death. For example, an individual that was injured in a car accident, and dies many months later of an unrelated heart attack, may still have his car accident injury claim advanced by his surviving loved ones. In a sense, the deceased’s lawsuit or injury claims become a potential asset of the estate.
Damages that Can be Recovered in a Survival Action
Until recently, the damages that could be pursued in a survival action were limited. In survival actions, economic damages incurred before death were recoverable. Economic damages include medical expenses and wage losses of the deceased before he or she passed. Punitive damages were also recoverable like in other cases where the at-fault party’s conduct was particularly egregious or blameworthy. However, damages for the deceased’s pain and suffering were not recoverable. The phrase “pain and suffering” generally refers to non-economic damages. Non-economic damages can be difficult to quantify but often make up the most significant portion of a personal injury settlement or jury verdict. These damages include pain, suffering, disfigurement, loss of enjoyment of life, inconvenience, physical impairment, humiliation, anxiety and emotional distress.
To many, it seemed unfair to ignore the injured person’s pre-death pain and suffering simply because the person passed away before the claim was resolved. This effectively resulted in a benefit to the wrongdoer in a personal injury case. In other words, a person who caused the injuries would be better off by killing the victim than just injuring him. Fortunately, California law recently changed.
Under the new law, non-economic damages, including pre-death pain and suffering, may be recovered in a survival action. The law was signed by Governor Newsom on October 1, 2021. It expressly allows the estate of the deceased to recover for the pain and suffering of the injured person prior to death. Though there are exceptions, the new law applies only to lawsuits filed on or after January 1, 2022, but prior to January 1, 2026. It is uncertain whether the new law will remain in effect after that time. What is clear, however, is that the potential value of survival actions has increased dramatically.
What Are the Time Limits for Bring a Survival Action
The time period to file a survival action depends on the type of claim. Under California law, if a deceased has a surviving claim, a lawsuit may be filed before the expiration of the later of the following times: 1) six months after the death; or 2) the statute of limitations period that would have applied to the claim had the person not died. The “statute of limitations” is a legal term that refers to the amount of time one has to file a lawsuit for a particular claim. If the lawsuit is not filed before the statute of limitations expires, the lawsuit will be barred.
The statute of limitations is two years for a typical negligence case under California law. The statute of limitations usually begins from the date of the injury or occurrence giving rise to the claim. However, it may be delayed in certain circumstances. If you believe you have a survival action and are unsure of the statute of limitations, it is critical that you meet with an attorney or you run the risk of having the claim barred forever. The attorneys at the Piccuta Law Group, LLP are available to discuss your case and help you determine the time by which you must file a lawsuit. Please contact one of our attorneys today for a free consultation.