When an accident results in the death of a loved one, surviving family members need emotional support and guidance through a maze of uniquely complex legal issues. Proving who is responsible for the accident is only the first challenge. Other obstacles include the intricate rules about what damages the family and estate may seek, where the suit should be filed, how income and estate taxes may apply, and a host of other special legal hurdles.

At Raynes Lawn Hehmeyer we have represented the surviving families and estates of those killed by others. We are fortunate that one of our attorneys literally wrote the Pennsylvania law that preserves the rights of surviving families to pursue a legal claim.

The unexpected death of a loved one can be devastating; when someone dies because of the negligent or wrongful actions of another person or entity, the death can be even more overwhelming. Family members of the deceased person will have to deal with the estate, insurance claims, legal affairs, and other concerns while they are also going through the grieving process. This can be very difficult for the surviving family members.

If someone’s negligence or intentional actions resulted in the death of your loved one, you should understand your legal options and your rights for recovering compensation. One of the best things that you can do is to talk to a lawyer at Raynes Lawn Hehmeyer. We have offices in Pennsylvania and New Jersey, and we can help to guide you through the legal process to help secure compensation for your losses. 

What is a wrongful death and survival lawsuit?

When a loved one dies because of negligent or intentional conduct, family members have a right to file a wrongful death and survival lawsuit to hold the defendant accountable and to recover damages. The wrongful death action is to compensate the deceased person’s beneficiaries for the losses they have suffered, as described below. The survival claim is to compensate the estate of the decedent for his or her pain and suffering and loss of income from the time of the injury until death, as well as the loss of anticipated future income from the time of death until his or her work life expectancy.

Historically, injured victims could file civil lawsuits against the people who harmed them, but this right went away when the victims didn’t survive. Pennsylvania recognized that this was unfair and passed laws creating wrongful death and survival actions, allowing family members to seek the recovery of damages when their loved ones died because of the negligent or intentional acts of others. These laws can be found at 42 Pa.C.S. §§ 8301- 8302.

Wrongful death and survival actions are like personal injury claims and can arise from injuries resulting from medical malpractice, defective products, automobile accidents, etc. Both actions are usually brought in one lawsuit for the benefit of the family members (wrongful death action) and the decedent’s estate (survival action). If a personal injury lawsuit was started before your loved one died of his or her injuries, the lawsuit can continue, and a wrongful death action can be added to the lawsuit.

There are a few additional considerations. For instance, an estate will have to be opened and either an executor (if there is a will) or an administrator (if there is not) will have to be appointed before a wrongful death and survival lawsuit can be filed in court.

Trying to handle a wrongful death claim without help can be daunting. By working with a lawyer at Raynes Lawn Hehmeyer, you can spend your time on the many other necessary tasks while your attorney advocates to recover the maximum compensation.

Who can recover damages?

Under the law, only certain people have the right to be compensated for the death of a loved one in a wrongful death action. It depends on your relationship to the deceased person. A wrongful death action can be brought for the benefit of the decedent’s surviving spouse, children, or parents for the losses they have suffered.

The survival action is brought on behalf of the deceased person’s estate. When damages from the survival action are recovered, they belong to the decedent’s estate and will be subject to claims filed by the decedent’s creditors. The remaining damages recovered are passed to the beneficiaries named in the decedent’s will or to the heirs under the state’s intestacy laws if there is no will.

What can you recover?

Your ability to recover damages in a wrongful death lawsuit is a statutory creation. The purpose of a wrongful death action is to compensate the surviving family members for their economic losses that have resulted because of their loved one’s death. This includes the loss of decedent’s monetary support – for food, clothing, shelter, transportation, medical expenses, gifts, insurance, education, entertainment, and recreation – that he or she would have provided for his or her spouse, children or parents from the date of death until the end of his or her life expectancy.

Wrongful death damages also include compensation for all hospital, medical, funeral, burial, and estate administration expenses that were incurred.

Most importantly, the family is entitled to be compensated for the loss of the value of the comfort, society, companionship and services, such as work around the house, that their loved one would have provided if he or she had lived.

A survival action allows the recovery of damages that the decedent could have recovered through a personal injury lawsuit if he or she had lived. The damages available through a survival action include:

  • Physical pain and suffering from the time of the injury until he or she died
  • Medical expenses from the time of injury until he or she died, unless these expenses are sought in the wrongful death action
  • The loss of the deceased person’s earnings from the time of injury until death and the loss of his or her earning power from the time of death to the remainder of his or her anticipated work life expectancy

Proving wrongful death and survival claims

To prove a wrongful death and survival lawsuit, you must show the following elements:

  • The defendant owed your deceased loved one a duty of care.
  • The defendant breached his or her duty of care by acting negligently, intentionally, or knowingly.
  • The defendant’s breach of the duty of care caused your loved one’s death.
  • You suffered losses because of the death of your loved one.

Proving damages

To prove damages in a wrongful death action, you will need to prove your loved one’s life expectancy, his or her anticipated future earnings, and any amounts that he or she would have provided for the support of his or her beneficiaries. In most cases, actuaries or economists calculate the damages.

Family members may also seek compensation for the funeral and burial expenses incurred and should document all the costs and save the paperwork and receipts.

Damages for what are sometimes called intangible losses may be proven in many ways. Your loved one’s pain and suffering is compensable only if you can prove that he or she was consciously aware of the pain. This may be proven through the testimony of family members, healthcare providers who cared for your loved one or medical records.

The loss of a loved one’s comfort, society and companionship is proven mainly through the testimony of family members.

Time Limitations

Each state has its own statute of limitations (the time within which a lawsuit must be filed in court) for wrongful death and survival actions. In Pennsylvania, the statute of limitations for a wrongful death claim is two years from the date of your loved one’s death. The statute of limitations for a survival action may under certain circumstances start to run before the date of death.

If you wait too long to file the claim, you will be unable to recover compensation for your losses through a lawsuit. It is best to contact an attorney as soon as possible after your loved one has died. This can provide your attorney with more time to gather evidence and to build a stronger case for you.

If you or a loved one has been critically injured do to someone else’s negligence, please click here to fill out the contact form, or call 1-800-535-1797 and someone from our team will be ready to help.

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