What is the Difference Between a Wrongful Death Claim and a Survival Action?
The terms “Wrongful death claims” and “survival actions” are often used interchangeably, but it is important to understand the difference between the two types of claims. Wrongful death actions seek damages to the decedent’s family member, suffered by them personally as a result of their loved one’s death. Claims include, but are not limited to loss of love and affection, funeral expenses, and in some instances, loss of financial support.
Survival actions, on the other hand, are the claims the decedent would have had if they had not died. They include the decedent’s own pain and suffering and mental anguish from the time of injury until the time of death, as well as any medical bills they incurred prior to death.
Only one survival action may be brought for a decedent’s death whereas numerous wrongful death claims may be filed depending on how many proper claimants the decedent had.
Who Can Bring Wrongful Death and Survival Claims?
In Louisiana, only certain people may bring wrongful death and survival claims. Pursuant to Louisiana Civil Code Articles 2315.1 and 2315.2, the following people may bring the actions to the exclusion of those below them on the list:
1. The surviving spouse and child or children or either the spouse or child;
2. The surviving father and mother, or either of them;
3. The surviving brothers and sisters, or any of them; and
4. The surviving grandfathers and grandmothers, or any of them.
Also, in a survival action, if none of the persons in the above list are available, the decedent’s succession representative may pursue the action.
Let’s try an example. If a decedent was married at the time of their death, their spouse would be the proper party to bring the wrongful death and survival actions. Even if the decedent’s father was very close to them, he would not be entitled to bring the claims. However, if the decedent wasn’t married and didn’t have children, his father would be able to bring the claims.
Who is At-Fault and is Insurance Available?
Another factor to consider when deciding whether to pursue a wrongful death or survival claim is who is at fault for causing the death. If the incident occurred at work, the death may fall under workers’ compensation law. However, even if an incident occurred at work, it is important to have an experienced wrongful death attorney review your case to determine whether any third-parties may be responsible.
Finally, it is critical to determine early on, whether insurance is available to cover the damages. It is important to thoroughly investigate available coverage so that the decedent’s family may be compensated for their horrible loss.
When a tragic death occurs, it is important for a family to understand their rights and for an experienced wrongful death attorney to fully investigate the incident. At Grady J. Flattmann, Attorneys at Law, LLC, our job is to make sure that no stone goes unturned in protecting and maximizing a family’s rights.
Has Your Loved One Died Due To The Negligence Of Others?
If you lost a family member due to a negligent act you need to speak with an experienced Covington area wrongful death attorney as soon as possible. Please contact me online or call my Covington office directly at 985.590.6182 to schedule your free consultation today. I help families throughout Louisiana including Mandeville, Slidell, Bogalusa, Franklinton, Hammond, New Orleans and Metairie.