You may know about Texas wrongful death claims. But do you know about survival actions? What are they, and when do they come into play?
You’ve probably never heard of a “survival action” in personal injury law. But you’ve certainly heard the term “wrongful death.”
With a “wrongful death” claim in Texas, the estate of the deceased person brings a case against a careless or negligent party.
Did you know this wasn’t always the case? It used to be that if you died because of someone else’s negligence, they had no responsibility whatsoever for that. Wrongful death law was first introduced in 1846, when the British passed “Lord Campbell’s Act” that granted recovery for a person killed by tortious conduct.
Could you imagine a drunk driver or careless employer simply allowing someone else to die and going on about their business as usual?
Thank goodness our society has this law.
The are several major differences between Texas wrongful death claims and survival actions,
With wrongful death, the beneficiaries of the estate of the deceased benefit by winning financial compensation. And wrongful death law allows the estate to bring the lawsuit in the first place.
In survival claims, the estate wins damages the deceased could have recovered had they not died. For example, pain and suffering and lost earnings damages could be recovered. In certain situations, you may also be able to recover punitive damages too.
With survival actions, anyone not entitled to bring a wrongful death claim can bring the action. Spouses, parents, and children of the deceased person can bring wrongful death claims in Texas. So anyone who is not one of those individuals can file a survival claim. Usually, this is an heir or estate representative of the deceased person.
There’s also these differences:
- All recoverable damages for both a Texas wrongful death claim and a survival action are distinct and separate from each other
- The people who can recover financial damages are entitled to use different theories to recover, if necessary
So when do you file a wrongful death claim versus a survival action in Texas?
If a survival action is appropriate, it is filed in conjunction with a wrongful death claim. Just like a wrongful death claim, personal injury attorneys charge a percentage of the final settlement as a case fee.
If you talk to an attorney and they refuse to take your case on, seek a second opinion. Most Wrongful death attorneys don’t charge anything to discuss the details of your claim.
Shane V. Mullen is an attorney licensed by the State of Texas for the general practice of law, and the Managing Partner at Mullen & Mullen Law Firm in Dallas, TX. His firm focuses exclusively on personal injury law and has been in business for 40 years (since 1983). Before becoming a lawyer, Shane worked for his father as an accident injury claims investigator.