Differences between survival actions and wrongful death claims

Losing a loved one unexpectedly can leave a family grappling with not only immense grief and emotional turmoil but also immediate financial pressures and future uncertainties. This is especially true if the deceased was a primary provider or a key caregiver in the family. Florida law recognizes these challenges and provides legal avenues to seek compensation through survivorship actions and wrongful death lawsuits. Each type of legal action offers benefits to surviving family members, though they differ in their specifics and applications, which a knowledgeable Orlando wrongful death lawyer can clarify and guide you through. This support aims to alleviate the financial strain during such a difficult transition.

What is a wrongful death action?

Wrongful death refers to the negligence of one party causing the death of someone else. A wrongful death lawsuit is a type of personal injury claim filed by certain surviving family members (spouse, child, parents, sometimes grandparents, or siblings) against the party liable for their loved one’s death.

The purpose of this personal injury lawsuit is to provide monetary compensation for the loss of your loved one. We know that no amount of money can replace the loss your family experiences, and if you’re like many families, you may feel uncomfortable or awkward filing a lawsuit for money damages because your family member died.

However, it is your right, and in many cases, a wrongful death suit may be the only way to hold the at-fault party legally accountable for the harm they caused. And, there may be significant financial burdens you wouldn’t have had if your loved one was still alive, starting with funeral and burial costs, plus contributions to retirement investments, the possibility of losing a pension your loved one would have earned, and consideration for your own loss of companionship, consortium, and guidance.

What is a survival action?

Survival actions are usually filed in Florida cases where a victim was grievously injured in a negligence-caused accident, survived the initial incident, and later passed away. The victim’s family may have initiated a personal injury lawsuit on behalf of the injured person but has not yet settled the case. If the victim passes away while their case is pending, then their Florida personal injury attorney enhances the suit with a survival action.

In addition to the damages your attorney demands for the loss of consortium and income, they may add funeral and burial expenses, plus loss of future contribution your loved one would have made and any other related expenses.

Which is right for my situation? Balancing wrongful death vs. survival action

Florida courts usually require plaintiffs to choose between a wrongful death lawsuit and a survivor action. One of the most important considerations for determining which type of action is most appropriate for your case is whether your loved one passed away fairly soon after the accident or whether they lived longer and experienced significant pain and suffering.

In the latter case, the plaintiff may be eligible for a hefty amount of non-economic damages, which consist of pain and suffering, emotional trauma, and diminished quality of life.

There is one situation, though, in which surviving families may file a survival action and sue for wrongful death:

When wrongful death and a survival action happen simultaneously

Let’s use Anna as an example: She slipped and fell at the mall. She’s filing a lawsuit for damages against the mall, pointing out that they failed to warn about a wet floor and failed to clean it up properly. As her case is pending, she’s driving to work on Interstate 4 and gets hit by a semi-truck. Unfortunately,  Anna passes away.

Under these circumstances, Anna’s estate representative can continue her premises liability claim against the mall, and her family could file a wrongful death suit against the trucker and trucking company.

This is a rare situation, but it illustrates how these two separate actions could happen. Your family does have the right to continue both claims, as they are two separate incidents.

Quality legal advice for families who lost a loved one

If you lost a loved one in an avoidable accident, like a construction site injury, traffic collision, medical malpractice, or a dangerous drug, you may be eligible to file a wrongful death lawsuit, survival action, or both. The attorneys at DWK Law can explain the benefits of wrongful death vs survival action under Florida law. Contact us at (407) 244-3000 for a free consultation.