survival action

Tragic events happen. When they do, we need to be prepared to handle them, if not for ourselves, then for the sake of family members. The first step requires understanding who to go to with questions, particularly in wrongful death cases.

Contact Pamela Olsen, Esq, injury and accident attorney, Ocala, FL, when you have questions regarding the wrongful death of a spouse, significant other, partner or child.

Wrongful Death

Wrongful death occurs due to the wrongful, negligent, or careless behavior of another who had a duty to behave safely. This behavior, whether intentional or not, must have a direct causal connection to the event that caused someone else to lose their life.

Accidents resulting in wrongful death could include motor vehicle crashes, medical malpractices, on-the-job injuries, and slip and fall incidents. Even minor actions or non-actions of the defendant can be responsible for the death of another.

When a wrongful death occurs, it is devastating to the victim’s direct family. In many cases, the deceased is an integral part of the family dynamic, providing physical care, emotional support, and financial stability. Families can be lost and hurt after such a vital member’s loss.

There is no way to replace a valued family member, but it is possible to seek compensation for the changes that will impact the family. Often, compensation includes more than recouping medical bills. It may consist of recoupment of lost wages and pain and suffering.

When a wrongful death occurs, regardless of the incident, it is critical to engage an experienced and successful lawyer.

Compensatory Actions in a Wrongful Death Case

Families seeking compensation following the wrongful death of a family member have two courses of action: filing a wrongful death claim or filing for survivor action.

Wrongful Death Claims

A family member can submit a wrongful death claim on behalf of the deceased’s family. It is a claim intended to seek compensation for the family’s losses.

Survivor Actions

A survivor action is a claim filed by the deceased’s estate on behalf of the dead. It is a claim intended to seek compensation for losses to the deceased.

Differences

The most significant difference between a wrongful death claim and survivor actions is who receives compensation.

Compensated Parties

In a wrongful death claim, the court awards damages adjudged directly to the family if it finds that the death was wrongful. The amount awarded is not taxable.

In survivor actions, the court awards damages to the deceased’s estate if it finds that the death was wrongful. The deceased’s will determines the division of the estate. Those named to receive a portion of the estate may receive the financial damages assessed. Damages assessed in this way are subject to taxes and creditor claims.

Many may not see this as a big difference, but those identified as direct family and those identified as receiving the estate in the will are not always the same. This difference is critical when deciding whether to file a claim for wrongful death claim or for survivor actions.

Compensation Considerations

Another significant difference between the two is how the court determines compensatory damages.

In a wrongful death claim, the family can seek compensation for the medical bills incurred by the deceased, pain and suffering by the deceased and family as a result of the loss, and for the lost earnings that the dead would have contributed to the family had he survived.

In a survivor action, the estate seeks compensation for what the deceased stood to lose had he survived. This compensation includes medical expenses and pain and suffering, among other things.

Filing Timelines

Whether for a wrongful death claim or survivor action, claimants have up to two years to file. There are specific deadlines and processes for filing, which can be tedious. Claimants should seek the assistance of a wrongful death lawyer to ensure timely and accurate filing.

Proving the Claim

When filing a claim, the claimant has the burden of proving that the accused was at fault, that the wrongful death impacted the family or estate, and that compensation is necessary due to that impact.

To have an actionable case, the claimant must prove that:

  • The deceased would still be alive were it not for the actions of the defendant.
  • The defendant’s actions were causally related to the death of the member.
  • The defendant was responsible for his actions.
  • The defendant had a duty to protect, warn, or otherwise make safe the deceased.
  • The defendant breached that duty.

A family member or representative of the estate, as the claimant, must show that they are legally entitled to bring the case forward.

To prove a basis for compensation, the claimant must show documentation of:

  • Medical expenses
  • Emotional damages (mental health appointments, medications, etc.)
  • Impact and changes to family structure and support
  • Financial losses such as lost wages and potential for lost wages

This documentation could include police reports, accident reports, job site reports, medical records, pay records, and more.

Speak to a Wrongful Death Attorney

The period immediately following a tragic loss, like a wrongful death, is extremely trying and emotional. There are several moving pieces mentally, financially, and physically. The critical thing to remember is that you don’t have to handle those moving pieces alone.

Close and extended family are vital to healing emotionally and physically after a tragedy. An accident or injury attorney is critical to recovering financially when that tragedy impacts the family.

Attorney Olsen is an experienced wrongful death lawyer in Ocala, Fl. When you have questions concerning a wrongful death, contact her at (352) 671-9777.

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About the Author

Pam Olsen

Ms. Olsen has practiced law since 1992. During her law school education and throughout career she knew, if it is not about people, she is not interested. Everything about people interests Ms. Olsen from the simple details of living to the most profound. She began her law career in a skyscraper in downtown Miami representing corporate interests. Within a VERY short time, Pam knew that side of the things in the world was not for her.

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