Posted on behalf of Stephens, Anderson & Cummings on Feb 14, 2017 in Wrongful Death
Wrongful death claims and survival claims in Texas are similar because they deal with the effects of someone's death. However, that is where most of the similarities end.
Wrongful death claims offer compensation for dependents, while survival claims seek damages for the decedent’s injuries prior to death, according to Texas' Civil Practice and Remedies Code Title 4. Liability in Tort Chapter 71. The process for filing a claim and recovering compensation is also different for each type of action.
Stephens, Anderson & Cummings' personal injury attorneys can advise you as to whether you can file one or both of these actions after the death of a loved one. We have in-depth knowledge of both types of claims and understand how to be successful with each one.
Contact our personal injury lawyers right now for a free legal consultation. Call (877) 920-9009.
Elements of Both Claims
One of the major distinctions between wrongful death and survival claims is the circumstances under which a claim can be filed.
There are five elements of a wrongful death claim:
- The person filing must be a parent, spouse or child of the decedent. In other words, the person filing has to be considered a statutory beneficiary of the deceased.
- The defendant has to be a corporation or an individual.
- The party’s wrongful act, negligence, carelessness, unskillfulness or default caused the decedent’s death.
- The decedent would have been legally able to file an injury claim if he or she had survived the injuries.
- The family member filing the claim experienced damages due to the death, such as mental and emotional anguish, loss of companionship, and loss of inheritance.
Recoveries are paid to the surviving parent, spouse or child of the decedent. Damages include those suffered by the claimants and court costs.
Unlike a wrongful death claim, a survival claim offers justice for the victim, not his or her family. It is basically a personal injury claim, sought after death. Four elements must exist in order for a claim to be filed:
- The plaintiff must be the personal representative of the victim's estate. In other words, the personal representative or heir of the estate must file the claim.
- The decedent suffered a personal injury to his or her health, reputation or person prior to death.
- The decedent could have brought legal action for the injury had he or she survived.
- The defendant’s wrongful action caused the injury to the decedent prior to death.
Compensation is awarded to the decedent’s estate to be distributed accordingly. Recoveries include damages the decedent suffered prior to death, along with funeral expenses if the injury caused the death, and court costs.
STATUTE OF LIMITATIONS FOR BOTH CLAIMS
You have two years from the date of a loved one's death to file a wrongful death claim or a survival claim based on the Texas statute of limitations. If you do not file a claim before the deadline, you will lose the right to do so and will be unable to recover compensation.
Two years may seem like a long time. However, it may be necessary to conduct a complex investigation to find out who is at fault for your loved one's death.
You need to contact a personal injury attorney as soon as possible after your loved one's death. This will provide your attorney with enough time to fully investigate what happened and build a strong case on your behalf that gives you the best chance of obtaining fair compensation.
If you have suffered the loss of a loved one, turn to an experienced attorney who can assist you through this difficult time. The attorneys of Stephens, Anderson & Cummings are equipped to handle these personal matters and can guide you in filing the appropriate claim should you choose to do so.