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WHO HAS THE RIGHT TO ASSERT A WRONGFUL DEATH CLAIM? | WCTL


Sep 29, 2016

In California, when a person has died as the result of the another person’s actions, there are two types of personal injury actions available to the surviving family members, representatives of the deceased, and other interested or dependent parties: survival actions and wrongful death actions.  These two actions are quite different, though they both rely on the fact that the victim is deceased.

A survival action is brought as though the surviving parties are taking the position of the deceased.  In other words, a survival action asserts claims that the deceased victim would have had access to had they been alive.

For example, the spouse of a victim who died in a motor vehicle accident may be able to bring a survival action for the victim’s pain and suffering, emotional anguish, and the cost of medical treatment after the accident, among other damages.

A wrongful death action is brought by the surviving parties from their own unique position.  In a wrongful death action, the surviving parties do not claim damages that the deceased would have claimed.  Instead, they seek to recover damages for various losses they suffered as a result of the victim’s death.  These damages may include the loss of financial support, loss of guidance, and loss of companionship, among other things.

The most important initial question in a wrongful death action is whether the surviving party has standing to sue – in other words, whether the surviving party is entitled to assert damages as a result of the victim’s death.

Legal Standing

California Code of Civil Procedure section 377.60 describes the persons who have standing to assert a wrongful death claim.  They are as follows:

  • A surviving spouse or registered domestic partner, so long as they were married or registered as domestic partners at the time of death.  Divorce cuts off standing to sue.
  • The children of the deceased, and if there are none, then in accordance with California’s laws of interstate succession.  Thus, standing may pass to siblings, parents, and other relatives.
  • Anyone who was financially dependent on the deceased at the time of death, such as stepchildren or mentally/physically-incapacitated relatives.  Further, minors who lived with the deceased for at least 6 months (and who were dependent on the deceased for the bulk of their financial support) may have standing to sue.
  • Personal representatives who have been specifically authorized to sue in such circumstances.

In a wrongful death action, there may be several surviving persons with the legal standing to assert a claim.  These claims do not, in theory, interfere with one another.  All persons legally entitled to sue under a theory of wrongful death should join in the wrongful death litigation as a plaintiff.

Wrongful Death Damages – A Brief Overview

The damages in a wrongful death claim must be separated from those claimed in a survival claim.

In a survival action, the damages encompass those losses specifically tied to the deceased and their estate, such as the cost of medical treatment, lost wages/income, and pain and suffering.

In a wrongful death action, on the other hand, the damages are limited to those directly suffered by the surviving persons.  These can be further divided into actual damages (economic damages) and general damages (noneconomic damages).

Actual damages include lost financial support, household services, lost benefits and gifts, and other economic losses.

General damages include lost companionship, love, affection, guidance, and lost marital companionship, lost sexual relations, and more.  Proving the specific value of these general damages can be difficult, given their inherently uncertain nature.

If you believe that you may have legal standing to assert a wrongful death claim, seek the consultation of a skilled wrongful death attorney to assess your claims and move forward with the claims process.  Call West Coast Trial Lawyers at (888) 539-9582 for a free consultation with an experienced Los Angeles wrongful death lawyer.

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