The untimely death of a loved one can be trying on anyone. The grieving process only becomes more difficult when the cause of death was someone else’s negligence or intentional behavior. For those grappling with this type of loss, there are legal avenues available to seek compensation.
These options are known as wrongful death claims and, in some instances, survival actions. Wrongful death claims are actions to recover compensation for both the personal and financial consequences of the death in question. Survival claims look to recover for injuries which the loved one suffered prior to their death but were not the actual cause of death. In other words, a survival claim is an action that predated the death of he loved one which caused injury, but wasn’t why the individual died. These claims that existed during the deceased’s life can “survive” their death and be brought notwithstanding the unrelated cause of death. Understanding the differences between these actions and how they work together is vital to achieving financial comfort after a painful loss.
If you have questions about your potential recovery after the death of a loved one or family member, do not hesitate to reach out to the dedicated Indianapolis wrongful death attorneys at Wruck Paupore. When you call us today at (219) 322-1166, you can get a free initial case evaluation.
Wrongful death claims are legal actions filed on behalf of the deceased seeking monetary recovery from the person or entity responsible for causing the death itself. If successful, a wrongful death claim will result in the court awarding damages for the personal and financial consequences of the death.
Whenever a death is caused by another party’s wrongful act or omission, grounds exist for a wrongful death claim. A wrongful act could be negligent, reckless, or intentional. In many cases, the same types of behavior that would give rise to a personal injury lawsuit had the victim survived will be considered wrongful acts for the purposes of a wrongful death claim where those acts resulted in death.
A wrongful death claim is not a criminal case. While criminal prosecution may be pending for the same incident, this legal action should be considered separate from any civil wrongful death case. A successful criminal prosecution will prove the charges “beyond a reasonable doubt” and may result in prison time and fines, while a successful wrongful death claim will result in damages being paid to the deceased’s loved ones or estate.
The amount of these damages and to whom they are awarded depends greatly on the circumstances of the case and are controlled in Indiana by several different statutes. Under the common law (court created rules) there was no right to recover for a wrongful death. This was changed by laws passing the Indiana state legislature, so what rights exist following a loved one’s wrongful death depend entirely on these laws. Different rules apply depending upon whether the death was that of a child or adult, whether an adult had dependents, and whether the adult was married.
Depending on the circumstances, wrongful death claims may involve the recovery damages for the cost of medical and hospital services, funeral and burial expenses, and the loss of the deceased’s expected future earnings from the time of their injury. They could also include compensation for the loss of the deceased’s love, companionship, support, guidance, and care. The availability of these theories of damages depends substantially on certain biographical factors, such as the age and marital status of the deceased at the time of death.
A survival claim (or survival action) is a distinct legal action that is available in the event that a person suffered injury prior to their death that was unrelated to the death itself. Survival actions serve entirely different purposes than wrongful death claims, so it is important to know about the benefits of each and how they can relate to one another.
Notably, you cannot pursue a survival action if the negligence at issue is what caused a person’s death; the only remedy in these instances is a wrongful death action. Conversely, you cannot pursue a wrongful death action against a party who caused injury to a person, but where those injuries did not cause the decedent’s death.
In many cases, whether to pursue a wrongful death claim or a survival action is obvious. In other cases, it is much less clear. For example, in a case of nursing home neglect a person may have suffered a broken hip in a fall which caused very serious complications. At the same time, the victim may have had a variety of other unrelated health problems. If that person eventually dies following the hip injury, it may be unclear whether the death was entirely or partially the result of the hip fracture or was entirely the result of other causes.
The answer to this question could determine whether a person is entitled to recover. If a person pursues a survival action and the defendant proves that their negligence actually killed the victim, then there is no entitlement to recovery. While this may seem like an absurd result (and it is), there are numerous instances of families being denied compensation because they elected to pursue a survival action when a person’s death was caused by the defendant, or a wrongful death action when the death itself was ruled to result from unrelated causes.
If the cause of death is not clear, it is possible to pursue both a survival action and a wrongful death action simultaneously, although in the end only one of the actions could be successful. After developing evidence regarding the cause of death, the estate can elect whether the survival action or the wrongful death action presents the appropriate remedy based on the evidence. This is called “pleading in the alternative.”
These are very important and difficult legal distinctions and should always be made in consultation with an experienced South Bend wrongful death law firm.
Survival actions are always filed by the deceased’s estate by way of the estate’s personal representative (also known as an executor). This is the same for wrongful death actions, except for in the case of the wrongful death of a child, where the parent or legal guardian of the child may file the suit.
If the deceased did not have a will that indicated who should serve as personal representative, or if the named personal representative does not wish to serve in that capacity, the court may nominate someone to serve in this role. A personal representative does not need a law degree and may be a close family member of the deceased. Still, it is always helpful having the help of a dedicated Indiana wrongful death attorney when discharging these duties, particularly while still grieving the loss of a loved one.
As explained above, wrongful death claims account for a wide range of damages and are specifically identified by statute depending on technical grounds. On the other hand, survival claims allow for recovery much the same way as any normal tort claim, allowing for recovery of both economic losses and non-economic losses, such as pain and suffering, in the same way they would be able to recover had they not died of unrelated causes.
The most significant difference is that the estate can only recover for economic and non-economic losses during the period of the deceased’s life time. For example, a seriously injured 40-year-old professional making $100,000 per year might be expected to work another 25 years and earn $2.5 million over that time period. If they are incapacitated from work due to another person’s negligence, they should be able to recover this entire economic loss, along with their lifetime of pain and suffering.
Read More: What Can Pain and Suffering Cover in Indiana?
However, let’s assume that one year after the injury, the victim died of an unrelated heart attack. In that instance, the recoverable lost wages would be for only one year, or $100,000, and non-economic losses like pain and suffering would only span a one-year time period. In essence, the wrongdoer obtains a windfall because the person died of other circumstances before the victim’s case went to trial. If this seems unfair, we agree, but it is unfortunately the law in Indiana.
Let’s expand on the above example, but with an added complication. Let’s assume the person’s injury was a severe traumatic brain injury as well as other fractures to the body. A year later, the person dies of a heart attack. Is this heart attack truly unrelated to the brain injury and fractures? Is there medical literature suggesting that a brain injury or fractures can put stress on the heart and increase the probability of a heart attack? If so, did that increased probability actually result in the fatal heart attack or would it have happened despite the added heart stress arising from the brain injury and fractures?
This could be a central dispute in litigation and would determine whether a claim is properly brought as a survival action or wrongful death action. It also will have a great impact on what damages will be available to the family of the victim; in many circumstances, such as where the deceased was married, the wrongful death action will allow the family to recover the lifetime economic lost wages (i.e. the $2.5 million) rather than just the $100,000 lost during the deceased’s life after the injury.
Read: How is Fault Determined After a Car Crash in Indiana?
On the other hand, where an unmarried adult dies in Indiana with no spouse or dependents, there is generally no right to recover any of the economic losses at issue in a wrongful death case - even the $100,000 of wages lost prior to the deceased’s death.
A skilled Indiana lawyer will be able to analyze these facts, determine whether a survival action or wrongful death action would be more beneficial to the surviving loved ones, and then attempt to develop evidence which supports the most beneficial theory. This can be extraordinarily complicated and in our opinion should never be done without the assistance of a seasoned and experienced wrongful death attorney.
Both wrongful death and survival claims are time-barred by Indiana’s personal injury statute of limitations. Under the statute of limitations, any civil actions stemming from a wrongful death may only be filed up to two-years from the date of death. A survival action likewise must be filed within two years from the date of the negligent act causing injury.
Missing this critical deadline will almost certainly mean the case will be dismissed. The two-year window does not leave much time to delay, so it is important to reach out to a seasoned Fort Wayne wrongful death attorney if you suspect you may have a case.
If you think you may have a valid wrongful death or survival claim, the time to act is now. When you reach out to the knowledgeable Indiana wrongful death lawyers at Wruck Paupore today, you can get a free initial case evaluation. Learn more by calling us at (219) 322-1166 today.
Woman suffering physical and emotional abuse at nursing home.
Client injured in auto accident after driver ran stop sign.
Women rear-ended while stopped at red light
Patient suffering nerve damage following hip operation.
Woman suffering a traumatic brain injury following semi-truck accident.
Woman suffering severe hip and ankle fracture after falling on defective step.
Man suffered headaches and other post-concussion symptoms from vehicle crash.
Woman suffering post-concussion syndrome after vehicle rear-ended by tractor trailer.
Man physically assaulted at his workplace.
Woman suffered from an ankle fracture after a truck turned in front of her vehicle.
Man suffered back injury after head-on collision.
Don is a founding partner and one of the nation’s top-ranked personal injury litigators. He is a member of the Multi-million Dollar Advocates Forum, which includes less than 1% of the nation’s trial lawyers, and awarded the highest ranking given by Martindale Hubbel and AVVO.
More importantly, Don understands representing personal injury victims is about more than recovering the best settlement: it’s about helping clients get back on their feet and supporting them in every aspect of their recovery.
In nearly all cases, our clients seek compensation from the wrongdoer’s insurance company. Before forming Wruck Paupore, Jason worked for a prominent law firm representing some of the world’s largest insurers. This experience gives Jason a deep understanding of the insurance industry and the strategies it uses to pay injury victims as little as possible.
Jason -- and our entire team -- put this inside knowledge to work to force insurance companies to pay what is actually owed. Often, we use the insurance company’s own tactics against them as we fight for the full compensation our client deserves.
For more than four decades, Keith has been fighting for injury victims. During that time, he’s watched the insurance industry change, with insurers now more interested in protecting their stock price than treating injury victims fairly.
Since the beginning, Keith has put people first. From his childhood in Gary, Indiana during the 1960’s and working his way through law school, Keith has risen to become one of the Midwest’s most respected trial lawyers. He has never forgotten that being a lawyer is about helping people -- and seeing injury victims through struggles in a way that could change their lives forever.
Over the decades, Keith, Don and Jason have fought relentlessly for clients, even when other lawyers have said the case was impossible to win.
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