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Did you lose a loved one due to someone else’s negligence or a wrongful act? If so, know that you could potentially seek justice on their behalf.
People can generally seek justice and compensation through a personal injury lawsuit if someone else causes them harm. But what happens if someone close to you dies from their injuries before they can take legal action? Your loved one still deserves justice, and the party who hurt them should still be held accountable for their actions. The answer is a survival action, which allows an injury victim’s estate to pursue a lawsuit after they have died.
If you’re interested in filing a survival action on your loved one’s behalf, The Wilhite Law Firm is ready to help. We’ve handled more than 45,000 cases over the last 45 years and have secured tens of millions of dollars on our clients’ behalf. And with more than two dozen attorneys and 90 staff members, we have the resources to take on even the biggest cases. We understand that the people we work with are often going through a difficult time in their lives, and we want to give them the peace of mind they deserve. Contact us today to discuss your options with an experienced Colorado survival actions attorney at no cost to you.
What is a Survival Action?
A survival action is a type of personal injury lawsuit filed to recover compensation for the injuries someone suffered before they died. Essentially, it is a way for the deceased’s estate to bring or continue a lawsuit because the deceased cannot do so themselves. Any compensation that is recovered goes to the deceased’s estate. This compensation can then be distributed to the deceased’s heirs as established in their will or Colorado’s intestate laws.
For example, suppose someone is badly injured in a car accident caused by a drunk driver and subsequently succumbs to their injuries a week later. After that person has died, the personal representative of their estate can file a survival action to seek compensation for the injuries and related losses the deceased suffered between the time of the accident and their death. Contact our Denver wrongful death lawyer today.
What is the Difference Between a Survival Action and a Wrongful Death Claim?
Both survival actions and wrongful death claims are filed after someone has died as the result of another party’s negligence, but there are key differences between these two kinds of legal actions. A survival action is brought by the deceased’s estate to recover compensation for the injuries and losses the deceased suffered before they died. By contrast, a wrongful death claim is brought by the deceased’s surviving family members to recover compensation for the losses they have personally suffered due to the deceased’s death.
While there are differences between survival actions and wrongful death claims, it is important to remember that these two kinds of lawsuits are not mutually exclusive. If someone in your family died due to the negligent actions of another party, you might be entitled to file a wrongful death claim against the negligent party at the same time as your deceased loved one’s estate files a survival action against them.
What Types of Damages May Be Recovered by a Colorado Survival Action?
Survival actions compensate a decedent’s estate for the losses it suffered between the time the decedent was injured and the time they died of those injuries. Depending on how much time elapses, these losses could be substantial. By filing a survival action, the deceased’s estate may be able to claim compensation for:
- The deceased’s medical bills from the time they were injured until their death
- Any lost wages or other income from missed work while the deceased was injured
- Any burial and funeral expenses
- The value of the deceased’s personal property that was damaged in the accident that led to their death
All told, this could be a significant amount for the deceased’s estate. Funeral and burial costs have soared in recent years, and the deceased’s medical bills will need to be paid even after they have died. A survival action can compensate the deceased’s estate for these losses and prevent their heirs from having to struggle with bills caused by someone else’s negligent actions.
What Types of Damages May NOT Be Recovered in a Survival Action?
A survival action can only compensate a decedent’s estate for the economic losses they suffered before their death. While the money from a survival action can be substantial, there are certain things that the deceased’s estate cannot seek compensation for, such as:
- The deceased’s pain and suffering
- The deceased’s lost future income
- The deceased’s reduced quality of life
- Loss of the loved one’s companionship, care, and affection
- Loss of the loved one’s society, guidance, and advice
- Loss of the loved one’s contributions to the household, including maintenance, cleaning, or cooking services that surviving family members must hire others to replace
- Loss of the loved one’s financial support and contribution
These damages are potentially recoverable, though, in a wrongful death claim. While the decedent’s estate receives compensation in a survival action, the decedent’s surviving eligible family members receive compensation in a wrongful death claim. A wrongful death action allows surviving family members to recover compensation for losses that they have incurred because of their loved one’s passing.
What Evidence Can Be Submitted to Prove Damages in a Survival Action?
To collect any compensation from a survival action in Colorado, the deceased’s estate must provide evidence of the losses the deceased suffered after they were injured but before their death. This evidence could include things like:
- Medical records – The deceased’s medical records can show what it cost to treat their injuries prior to their death.
- Proof of damaged property – Repair bills and other proof of the deceased’s damaged personal property can be submitted for consideration.
- Pay stubs and testimony from the deceased’s employer – The deceased’s former employer can provide information on how much money the deceased lost between the time of the accident and their eventual death.
Are the Laws for Survival Actions and Wrongful Death Claims the Same in Every State?
Each state sets its own rules regarding wrongful death and survival actions. Some states, like Colorado, separate the two actions so that survival actions compensate the deceased’s estate and wrongful death claims compensate the surviving family. Others combine both into a single wrongful death action.
Here are some key elements of Colorado’s approach to these actions:
- Who can file – In Colorado, only the personal representative (executor or administrator) of the decedent’s estate can file a survival action. However, various relatives can file a wrongful death claim, starting with a surviving spouse. Other states allow different family members to file these claims or reserve the right for the personal representative.
- Types of compensation – Colorado allows the recovery of the deceased’s medical expenses, lost wages, and certain other economic losses via the survival claim. A wrongful death claim, on the other hand, is about compensating the family for what they’ve suffered. This can include both economic losses, like loss of financial support and future earnings, as well as more subjective losses, such as grief and suffering. Unlike some other states, Colorado places a cap on the recovery of these non-economic losses.
Understanding these differences is crucial, especially if the incident happened in a different state, as it might change your legal strategy.
What Case Law Affects Survival Actions in Colorado?
Specific statutes and case law outline how to continue or initiate claims on behalf of a deceased person’s estate.
The primary statutory basis for survival actions in Colorado is in the Colorado Revised Statutes (C.R.S.) § 13-20-101. This statute allows for the continuation of personal injury claims that the deceased could have pursued if they had lived.
Several court rulings also govern survival actions. Perhaps the most important in recent years is the Colorado Supreme Court’s 2018 decision in Guarantee Trust Life Ins. Co. v. Estate of Casper. This ruling confirms that while a negligence claim can survive the death of a claimant, the types of compensation recoverable in a survival action are more limited than those recoverable in a personal injury claim. While a personal injury claimant could bring a case demanding compensation for pain and suffering, their estate would not be able to claim such compensation if the claimant died before the final entry of judgment.
This ruling was clarified the following year in Sharon v. SCC Pueblo Belmont Operating Co. This case further held that a decedent’s award of pain and suffering compensation was voided because he died while his case was on appeal and later reversed by a higher court.
How Can a Lawyer Help with a Colorado Survival Action?
Consulting an experienced local personal injury attorney is crucial when dealing with a Colorado survival action. First, a lawyer can handle the difficult legal tasks involved in filing and pursuing your claim. While they deal with these time-intensive tasks, you can focus instead on honoring your loved one and spending time with your family.
Personal injury attorneys are skilled in building solid cases to maximize the potential compensation from the claim. They know how to collect the necessary evidence and present it effectively to demonstrate the extent of the resulting losses.
Lawyers are also adept at negotiating with insurance companies and opposing counsel to reach a settlement that fairly compensates the estate for the deceased’s losses. They can manage these negotiations so that you do not fall victim to a lowball settlement offer.
If the case goes to court, a personal injury attorney can represent the estate. They will handle all aspects of the trial, from filing legal motions and managing discovery to presenting evidence and arguing the case before a judge or jury.
Throughout the process, your attorney can provide ongoing legal advice and support, clarifying your options and possible outcomes and easing the burden during a difficult time. Contact The Wilhite Law Firm to learn more about how our Colorado wrongful death lawyers can help you with your loss.
Who is Allowed to Bring a Survival Action?
Colorado law states that only the personal representative of the deceased’s estate can file a survival action. The deceased’s personal representative is usually appointed in their will. If the deceased did not have a will or did not appoint a personal representative, the courts will appoint a personal representative to oversee the deceased’s estate.
Contact a Wrongful Death Lawyer in Colorado as Soon as Possible
In Colorado, both wrongful death claims and survival actions are subject to a two-year statute of limitations, so you have a limited time to act if you wish to recover any compensation after your loved one has died as a result of someone else’s negligence. Time is of the essence, so contact the Colorado survival action lawyers at The Wilhite Law Firm today for a free consultation.
