Survival Action California | ⚖️ What You Need to Know

Posted on February 5, 2021 by bermanstaff

Losing someone you love is never easy. If you believe you may have a claim stemming from the negligent or wrongful death of a loved one, it is important to understand what legal avenues are available to recover damages. Though money isn’t going to bring back the loved one who passed away, it can help pay for those things you lost due to your loved one passing away. In the state of California, there are two separate legal actions that can be filed when someone has passed away due to negligence - Survival Action and Wrongful Death suits. It’s important to understand the differences between these actions, who can bring them, and what kind of damages each one covers. 

What qualifies for a survival action suit in California?

Not every death will qualify for a survival action suit or wrongful death suit in California. However, some common situations that can lead to both a wrongful death suit and a survival action include, but are not limited to:

  • Car Accidents: If the accident was caused by someone else, a defective traffic stop, or unsafe road conditions
  • Truck Accidents: Both commercial trucks hitting someone else or those driving commercial trucks who die
  • Security Negligence: If someone died due to the negligence of security officers or those who were protecting an area
  • Medical Negligence: This includes medical malpractice suits, lack of care at hospice homes, and more
  • Nursing Home Abuse: If an elderly relative passed due to nursing home abuse
  • Work Related Accidents: If an individual died at work or while performing work services
  • Defective Products: Products that malfunctioned in a way that caused death

Wrongful Death Lawsuit in California

Wrongful death lawsuits are governed by the California Code of Civil Procedure 377.60. A wrongful death action arises when one person dies as the result of the wrongful act or negligence of another person or entity. Damages that are recoverable in a wrongful death action are those that “are just” under the circumstances of the case, but cannot include those damages which are recoverable under a Survival Action.

Who can file a Wrongful Death Suit?

The statute governing wrongful death suits allows specific parties to bring forth a claim. These parties include:

  • The decedent's spouse
  • The decedent’s surviving children
  • The decedent’s domestic partner

In the case that there are no surviving persons of the decedent, a wrongful death lawsuit can still happen. However, in this case, it can be much more difficult to get damages awarded. A wrongful death suit may be filed by anyone who would be entitled to the property of the decedent. This is due to intestate succession. This can include:

  • The decedent’s parents
  • The decedent’s surviving siblings

Furthermore, if the following parties can show that they were financially dependent on the decedent, they may also bring forth a wrongful death action:

  • The decedent’s putative spouse and his or her children. A putative spouse is one who believed in good faith that he or she was married to the decedent.
  • The decedent’s stepchildren

What Damages are available in a Wrongful Death Suit?

Damages that are recoverable in a wrongful death action are those that “are just” under the circumstances of the specific case brought forth. These damages fall under two general categories: (1) those expenses which arise for the estate of the decedent as a result of the decedent’s death; (2) and those which are suffered by the family members as a result of the decedent’s death. So, what does this mean? Basically, damages which are often claimed in California under a wrong death action include, but are not limited to things like:

  • Funeral expenses
  • Loss of services
  • Loss of financial support, including future potential income
  • Loss of companionship
  • Loss of sexual companionship
  • Loss of guidance and support

When Should a Wrongful Death Suit be Filed?

A wrongful death claim in California must be filed under a specific time period known as the statute of limitations. In order to meet the statute of limitations, you must file the claim within two years of the decedent’s death. There are certain exceptions to this limitation; notably in the case of medical malpractice, the statute of limitations is three years from the decedent’s death.

Survival Action in California

Survival Actions are governed by California Code of Civil Procedure 377.30. Like a wrongful death suit, a survival action arises when a person dies as the result of the wrongful act or negligence of another person or entity. In fact, people who file a wrongful death suit can file both a wrongful death suit and survival action. Both actions can be claimed in the same lawsuit.

A survival action mainly differs from a wrongful death action in the type of damages which are recoverable. Unlike a wrongful death suit, which compensates the estate and loved ones for their losses, a survival action allows the estate to sue for the injuries suffered by the decedent, which he or she would have been able to sue for had he or she survived the negligent or wrongful act. This would require the decedent’s death to not be instantaneous, but the damages sustained need not be suffered for a very long time. This is usually measured by a medical professional. If the individual died immediately after the incident, a wrongful death suit is most likely your only course of an action. But, if the individual suffered from their injuries before dying, you’re likely to be able to file both a survival action and a wrongful death suit.

Who Can File a Survival Action?

Survival actions are not meant to compensate the decedent’s family members for their losses, but to compensate the estate for the injuries sustained by the decedent prior to his or her death, but after the wrongful action. So, think of a survival action being filed after a wrongful death. Because of this, a survival action must be brought by a decedent’s personal representative. This may be a lawyer representing the estate, someone named in the decedent’s trust, or will, or as often is the case, a member of the decedent’s family.

What damages are available in a Survival Action?

The recoverable damages in a survival action are limited to those losses the decedent suffered after the wrongful act until the time of death. These damages are limited to actual monetary damages and do not include pain and suffering. These damages can include, but are not limited to:

  • Medical bills
  • Loss of wages
  • Property damage and loss

Are punitive damages recoverable in a Survival Action filed in California?

Yes, in California, punitive damages can be recovered in a survival action. However, in order to be pursued, the decedent must have sustained an economic loss before death. Case law has held that even minor property losses, like damaging of clothes in the commission of a murder, can give rise to punitive damages. This is thanks to Rufo v. Simpson (2001) 86 573, 616. The purpose of punitive damages in a California survival action is to punish particularly egregious and reprehensible behavior on the part of the wrongdoers and to discourage others from taking similar actions.

The amount of recoverable punitive damages is covered under Neal v. Farmers Ins. Exchange , 21 Cal.3d 910 and based on three main factors:

  • The reprehensibility of the defendant’s conduct
  • The actual harm suffered by the victim
  • The wealth of the defendant

When Should a Survival Action be Filed?

The statute of limitations on a survival action is different than in a wrongful death suit. It must be brought within two years of the wrongful act, or six months after the decedent’s death, whichever is later.

Should you file a wrongful death suit or a survival action lawsuit?

Because wrongful death suits and survival actions cover different damages, plaintiffs, and have different statute of limitations, it is important to speak to an attorney to find out exactly which actions should be filed. It’s possible for both causes of actions to be filed in the same suit. Our attorneys at Berman & Riedel have vast experience handling cases arising from wrongful deaths and can help you figure out which actions are appropriate in your situation. If you’re looking to file a survival action in California, call us today at 858-350-8855.

About Berman & Riedel, LLP firm managing partner attorney William M. Berman:

Attorney William M. Berman focuses his practice in the areas of catastrophic personal injury, wrongful death and elder abuse and neglect. Strictly a plaintiffs’ dedicated firm, he never represents insurance companies in the defense of claims. Mr. Berman’s firm remains staunchly committed to helping those who have suffered serious injury or loss due the negligence, intentional misconduct or wrongful acts of others. Mr. Berman has grown his firm to what is considered one of the largest and most successful elder abuse/neglect practices within California. Through his continued successes in handling claims involving nursing home and elder abuse and neglect, Mr. Berman remains a prominent figure in advocating on behalf of this vulnerable class of citizens.
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Frequently Asked Questions

Below are answers to common questions people have about personal injury cases and working with a lawyer. During your initial consultation, we will be happy to answer questions that are particular to your case.

How Much Does It Cost to Hire a Personal Injury Attorney?

The attorneys at Berman & Riedel, LLP, accept cases on a contingency-fee basis. This type of agreement means you do not pay any attorneys’ fees out-of-pocket for legal representation. Attorneys’ fees are also contingent on the outcome of your case.

You benefit from legal representation in exchange for an agreed-upon percentage of a settlement or jury award. We will only recover a fee if you recover compensation.

Can You Tell Me How Much My Case Is Worth?

There is no way to determine the exact value of a personal injury case, especially early in your case. However, an experienced attorney can give you an estimated range based on their experience with similar cases.

There are many factors that may influence the value of your case, such as:

  • Your total financial or economic damages
  • The severity of your injuries
  • The impact of your injuries on your daily life
  • The strength of your case
  • Whether you share fault for your accident
  • Insurance policy limits 

Some damages are easy to calculate, such as lost wages and medical bills. Calculating the value of diminished earnings for the rest of your life or future medical needs; however, may require the help of experts. Non-economic damages like pain and suffering have no intrinsic financial value. These damages are challenging to calculate. 

If your case goes before a jury, you may potentially be able to recover more than you could through a settlement. However, this introduces a new element of risk: the jury. The circumstances of your accident and even how sympathetic you or the defendant are can influence the outcome.

During your consultation, and throughout your case, we will help you understand how these factors influence your case. We will also work tirelessly to document the value of all your damages and pursue maximum compensation on your behalf.

Will My Case Go to Trial?

The vast majority of cases are resolved by reaching a settlement agreement outside of court. Very few personal injury cases actually go to trial, but it is more likely if the facts in your case are in dispute, a legal issue is being contested, or you have a high-value case.

An experienced lawyer will build your case as if it will go to trial from the beginning. The stronger your case and evidence, the more likely a fair settlement will be reached.

How Do I Know If I Need a Personal Injury Lawyer?

If your case involves mostly property damage or minor injuries, you likely do not need a lawyer to handle a claim with the insurance company. The more serious your injuries, or the more complex your case, the more important it becomes to seek experienced legal counsel.

Remember that the insurance company is not on your side, even if the insurance adjuster seems sympathetic and you receive a settlement offer. If you are being blamed for your accident or sustained serious injury, a lawyer will help you protect your rights and build the strongest case possible. This includes calculating the full value of your current and future losses.

Legal representation is also vital if your case involves a complex area of law such as elder abuse or neglect, premises liability, commercial vehicle accidents, medical malpractice, or serious work-related accidents. Determining liability, navigating decades of legal precedence, and interpreting specific statutes in these cases is best done with years of relevant legal experience.

Do You Accept Cases Outside of San Diego?

While our law office is located in San Diego, Berman & Riedel, LLP, accepts cases throughout the state of California.


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