In Arizona, and elsewhere, the surviving family members of an individual who has died due to the negligence or wrongful misconduct of another party are entitled to sue and recover damages pursuant to a wrongful death action — and in some cases, pursuant to a survival action. Though the two actions are closely-related in many respects, there are fundamental differences that are worth evaluating.
Consider the following.
The Basis of the Action is Different
Survival actions are brought on behalf of the deceased with the intention of recovering losses that were suffered by the deceased directly (prior to their death). If the deceased dies instantly in an accident, for example, there would likely not be an actionable claim on this basis. On the other hand, if the deceased is injured in a car accident, and their condition worsens over the course of a month before they die, then their estate would likely be entitled to bring a survival action for significant damages.
Wrongful death actions are independent of survival actions, and meant to account for the losses suffered by the surviving family members of the deceased — for example, damages for wrongful death may cover the mental anguish suffered by a surviving spouse after the death of their husband.
If you believe that you may have a legitimate survival action or wrongful death action, it’s important to get in touch with a qualified Phoenix wrongful death attorney for further assistance and an evaluation of your claims.
Debtors, Creditors, and Liabilities
Wrongful death damages belong to you — the qualified, surviving family member entitled to such damages — and are therefore not subject to the claims of debtors and creditors that might otherwise attempt to access funds belonging to the estate of the deceased. The damages obtained in a survival action, by contrast, goes to the estate of the deceased, and is therefore vulnerable to debtor and creditor interference.
Available Damages
Wrongful death damages include, but are not necessarily limited, to:
- Loss of companionship, guidance, and love
- Loss of consortium
- Loss of services
- Financial support
- Mental anguish
- Expenses (i.e., medical, funeral) relating to the deceased
- And more
By contrast, survival actions may include the following damages (suffered directly by the deceased prior to their death):
- Funeral expenses
- Medical expenses
- Lost wages
- Pain and suffering
- Property loss
- And more
The Parties’ Right of Action
Survival actions and wrongful death actions are quite different in terms of who has a right to file a lawsuit and secure damages. In wrongful death actions, only qualified family members (i.e., surviving spouse, descendants, parents, siblings, etc.), as identified and established by Arizona statute, may bring a lawsuit against the defendant for damages.
Survival actions are more limited. In a survival action, the surviving family members are not entitled to bring a lawsuit against the defendant, as the damages do not directly belong to them — it is the estate of the deceased that has the right to bring a lawsuit against the liable defendant. Of course, once the personal representative of the estate has secured damages in a survival action, the family members can access the damages at-issue when the estate assets are eventually distributed to the beneficiaries (assuming that the family members are beneficiaries).
Negligence and Wrongful Misconduct
When contemplating either a survival action or a wrongful death action, it’s important to note that neither claim will stand without proof of negligence, recklessness, or intentional misconduct on the part of the defendant. You cannot succeed in securing damages on the basis of a survival action or wrongful death action without being able to show that the defendant at-issue acted in a negligent or wrongful manner, thus causing your loved one to suffer fatal injuries.
For example, suppose that you are bringing a wrongful death action against a driver for colliding with your sibling, which resulted in their death. If the driver clearly demonstrates that their actions were not negligent or wrongful — perhaps the driver was involuntarily intoxicated and is thus shielded from liability — then you are not entitled to damages. It is not enough that your loved one died. It must be the result of another’s negligent or wrongful conduct.