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.
The damages that may be pursued in a survival action are limited. In survival actions, general damages are recoverable. General damages may include medical expenses and wage losses of the deceased before he or she passed. However, damages for the deceased’s pain and suffering are not recoverable.
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.