Survival Action Lawyers in Los Angeles
Representing the interests of surviving family members
When someone is injured in an accident that was the fault of another party, a California personal injury attorney can file a personal injury claim to recover damages for medical bills and other losses. However, the process of financial recovery is quite different when an accident is fatal and results in the loss of a close family member.
Following a fatal accident, the law gives certain parties the right to file legal claims to recover damages, as a deceased person cannot file a lawsuit. While the most commonly discussed lawsuit in this situation is a wrongful death claim, California law also allows for survival actions to be filed. These are two different legal causes of action with two different purposes, and both are highly important to ensure the responsible parties are held fully accountable for causing the death and resulting losses.
If you recently lost a loved one, you need to discuss both a wrongful death claim and a survival action with a California personal injury lawyer. At Blair & Ramirez LLP, we represent surviving family members, as well as estate representatives in survival actions, to ensure you receive the full financial recovery you deserve following a tragic loss. Contact our dedicated legal team at (213) 568-4000 to learn more about how we can help you.
Why consulting a lawyer first matters.
Before talking to an insurance company, it's important to speak with a lawyer first. Insurance companies often try to offer much less than what you deserve, but a lawyer will work to get you a fair amount that helps you move forward after a tragic loss.
- Legal Expertise: Attorneys possess extensive knowledge of survival action laws and legal processes, guaranteeing proficient handling of your case.
- Negotiating with Insurers: They skillfully manage complex discussions with insurance companies, working to secure fair compensation for you and your family.
- Maximizing Compensation: Lawyers accurately assess the value of your claim, including funeral expenses, lost wages, and emotional suffering, to ensure you receive the maximum compensation.
- Handling Legal Challenges: They take care of all legal aspects of your case, from filing claims to representing you in court, allowing you to focus on healing after a tragic loss.
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What to do when when you experience a tragic loss.
Seek Legal Counsel
Consult with an experienced attorney as soon as possible. A lawyer can help you understand your legal options, guide you through the process, and ensure your rights are protected. They will also provide expertise in handling the complex legal and insurance matters associated with survival action claims.
Gather Documentation and Evidence
Collect all relevant documents, such as medical records, police reports, death certificates, and any other evidence related to the cause of death. If possible, obtain witness statements and photographs that can support your case. Your lawyer can assist you in gathering and organizing the evidence needed to build a strong case.
File a Claim or Lawsuit
Depending on the circumstances and advice from your lawyer, you may need to file a survival action claim or lawsuit. This will initiate the legal process of seeking compensation for the loss of your loved one, including damages for emotional distress, lost wages, funeral costs, and more.
Notify Insurance Companies
Contact the relevant insurance companies, but be cautious when speaking with them. Insurance adjusters may try to minimize the compensation you deserve. It is often advisable to let your lawyer handle the negotiations to ensure your interests are protected.
Focus on Emotional Healing
While navigating the legal process, prioritize your emotional well-being. Losing a loved one is devastating, and it’s essential to seek support from friends, family, or counseling services to cope with the loss. Your lawyer can handle much of the legal work, allowing you to focus on healing during this difficult time.
Survivors Action Insurance Claim Process
Notice of Intent:
Your attorney will notify the responsible party's insurance company about your intention to pursue a claim. The insurer will then issue a claim number and assign an adjuster to handle the case.
Statement Recording:
The adjuster may request a recorded statement from you. Be cautious, as these professionals are trained to gather information that could potentially weaken your case. Always seek legal advice before providing any statements to ensure your rights are protected.
Medical Treatment and Expenses:
If the responsible party’s actions led to the loss of a loved one, their insurance may be liable to cover funeral expenses, medical bills incurred before death, and related costs. Ensure you document all treatment and care provided to the deceased, as well as related financial burdens for your claim.
Initial Settlement Offer:
You may receive an early settlement offer from the adjuster, often aimed at resolving the case quickly for a low amount. It’s advisable to delay settlement discussions until after you fully understand the scope of the loss and have consulted with your attorney about the fair value of the claim.
Commencing Negotiations:
Once you have a complete understanding of your expenses, emotional distress, and losses, begin the negotiation process. Submit a demand letter along with relevant documents to the responsible party’s insurance company, outlining the full extent of your claim.
Achieving Final Settlement:
After negotiations, a settlement is often reached. Once the settlement agreement is signed, the payment should be issued to you within a few weeks, helping to address funeral costs, lost income, and the emotional toll.
Alternative to Failed Negotiations:
If negotiations fail to result in a satisfactory settlement, you have the option to pursue further legal action, such as filing a lawsuit or seeking alternative dispute resolution options like arbitration. Your attorney will guide you through the necessary steps to ensure your case is heard in court if needed.
Calculating Compensation
Calculating compensation for the death of a loved one involves several factors, including:
- Funeral and Burial Expenses: These are the costs associated with the deceased’s funeral, burial, or cremation. This can include funeral service fees, casket or urn costs, cemetery fees, and other related expenses.
- Medical Expenses: This includes the medical costs incurred prior to the deceased’s passing due to the accident or incident that led to the wrongful death. This can include hospital bills, emergency room visits, surgeries, and long-term care expenses.
- Loss of Income: The income the deceased would have earned if they had survived is a significant part of the compensation calculation. This can include:
- Past lost wages: Earnings the deceased could have made from the time of the injury until death.
- Future lost earnings: The amount of income the deceased would have reasonably earned over the course of their lifetime, factoring in their age, career, and potential career growth.
- Loss of Companionship and Emotional Distress: This compensates the surviving family members for the emotional pain and suffering caused by the death of a loved one. This can include the loss of affection, care, comfort, and guidance from the deceased.
- Loss of Parental Guidance: If the deceased was a parent, compensation may include the loss of parental guidance, nurturing, and support to the surviving children, especially if the children were dependent on the deceased.
- Pain and Suffering: Although the deceased can no longer experience pain and suffering, compensation can be awarded to the surviving family members for the emotional trauma and grief caused by the death. This can vary based on the circumstances of the death and the relationship with the deceased.
- Property Loss: If the deceased owned property that was lost or damaged as a result of the wrongful death, the surviving family members may be compensated for the value of that property.
- Punitive Damages: In cases where the defendant's actions were particularly reckless or egregious, such as in cases of gross negligence or intentional harm, the court may award punitive damages to punish the wrongdoer and deter future misconduct. These damages are in addition to the other compensation and are not tied to the actual losses incurred by the family.
Key Factors Affecting Compensation in a Claim
- The deceased’s age and health: A younger person with many working years ahead of them may lead to higher compensation for lost future wages.
- The financial dependency of survivors: The amount of financial support provided by the deceased to surviving family members, such as a spouse, children, or parents, will influence the compensation amount.
- State laws: Compensation for survival action claims varies by jurisdiction, as each state has its own laws regarding damages, including whether emotional distress or loss of companionship is compensable.
Understanding Your Case
When someone passes away, they generally lose their right to file a legal claim and recover damages. A survival action is an exception to this rule because the right to sue survives the death. While a deceased person cannot pursue a lawsuit, California law passes the right on to the deceased’s estate. California Code of Civil Procedure 377.30 provides the personal representative of the deceased’s estate the opportunity to file a claim to pursue damages on behalf of the deceased.
If another person or party acted negligently, recklessly, or intentionally wrongfully to cause the death in question, a survival action is appropriate in many cases. These actions can arise from many types of incidents, including:
- Traffic accidents
- Nursing home neglect or abuse
- Medical malpractice
- Violent assaults
As long as the victim survived long enough to incur any damages—even minor ones—the estate can bring a survival action to recover for those damages. If you believe that a survival action might be allowed in the case of your lost loved one, please do not wait to consult with our best wrongful death and survival action lawyers in Los Angeles today.
Wrongful death vs. survival action
Wrongful death claims and survival actions are often closely associated, which makes sense as they arise from the same fatal event. However, it is important to remember they are different causes of action that seek different types of damages. These claims can be filed together or separately. However, in either case, they have many differences.
Some of these key differences include:
- Who can file: A wrongful death lawsuit is filed by specified close family members, while a survival action must be filed by the estate’s personal representative or successor in interest.
- Compensation sought: Wrongful death claims seek compensation for the losses of surviving family members, while survival actions seek compensation for the losses of the deceased and the estate prior to death.
- Time limits: Family members generally have a significantly longer time to file a wrongful death lawsuit than the personal representative has to file a survival action following the death.
- Punitive damages: Punitive damages are not allowed in wrongful death cases in California, although they are allowed when appropriate in survival actions.
What is the California survival action statute of limitations?
The amount of time that the decedent’s personal representative or successor in interest has to file a survival action can vary widely depending on the circumstances of the case. The statute of limitations in a survival action begins to run at the time of the wrongful act that resulted in the decedent’s death. A survival action can be filed before either of the following events occur:
- Six months from the date that the decedent passes away.
- Two years from the date of the act that resulted in the decedent’s death.
In cases where the decedent survives for some time after the accident or wrongful act, the time limit for filing a survival action can be significantly longer than the time limit for a wrongful death claim. In other cases, they can be nearly or even exactly the same.
Due to the fact that a survival action is the only way that the estate can recover punitive damages, it is vital that the decedent’s personal representative or successor in interest file a claim within the appropriate time. The most effective way to ensure that your claim is filed in time is to speak to an experienced lawyer as soon as possible after losing a loved one.
Who can bring a survival action in California?
As mentioned, a survival action is brought by the personal representative of the deceased individual’s estate. This person is designated to “represent” the deceased’s rights and wishes—both during the probate process and in any applicable survival actions.
A personal representative is generally named in the last will and testament of the person who passed away. Once the will is approved by the probate court as valid, the personal representative can take action on behalf of the estate and begin the process of filing the survival action. If there was no will left by the deceased, the action may be filed by a successor in the interest of the deceased, who is a beneficiary of the estate and considered to be the natural successor to causes of action or property of the deceased individual.
Often, people will designate close family members as their personal representatives, such as a spouse or an adult child. However, in some situations, a person may select an attorney, close friend, or another trusted individual as the personal representative of their estate.
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