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Differences Between Survival Action and Wrongful Death

Survival actions and wrongful death are two distinct legal concepts under Colorado law – each with different implications on how compensation claims for a deceased person are brought forth. 

Survival Action

A survival action allows the estate of a deceased individual to continue or initiate a personal injury lawsuit after that person’s death. It arises when the victim survives an accident (which was caused by someone else’s unlawful conduct) for some time before ultimately succumbing to their injuries.

“(1) All causes of action, except actions for slander or libel, shall survive and may be brought or continued notwithstanding the death of the person in favor of or against whom such action has accrued, but punitive damages shall not be awarded nor penalties adjudged after the death of the person against whom such punitive damages or penalties are claimed; and, in tort actions based upon personal injury, the damages recoverable after the death of the person in whose favor such action has accrued shall be limited to loss of earnings and expenses sustained or incurred prior to death and shall not include damages for pain, suffering, or disfigurement, nor prospective profits or earnings after date of death. An action under this section shall not preclude an action for wrongful death under part 2 of article 21 of this title.”

However, if an individual dies instantly as result of another person’s negligence, a survival action cannot be filed.

Who Can File a Survival Action in Colorado?

In Colorado, it’s the personal representative of a deceased individual who possesses the legal authority to bring forth a survival action against any negligent parties involved. A person is typically appointed through estate planning documents like wills or trusts

If your loved one didn’t leave any documents appointing a personal representative before they passed, then one will be appointed by the probate court.

While there is a strict rule about who can file this type of claim, compensation obtained is intended to compensate certain people in the deceased’s family, not just the personal representative (or sometimes not the personal representative at all).

Damages That Can Be Recovered in a Survival Action

In a survival action, the recoverable damages are primarily focused on financial losses that occurred from the date of injury to the exact date of death including loss of earnings prior to death and medical bills.

It’s also important to note that there are some limitations with survival actions, as you cannot recover pain and suffering, disfigurement, or loss of profits the decedent would have made.

Wrongful Death Cases in Colorado

On the other hand, relatives of a deceased individual can file what is known as a wrongful death claim if someone is responsible for causing that person’s fatal accident and their loved one dies. Unlike survival actions, you can bring forth this claim even if your loved one passed away almost immediately after the accident:

“When the death of a person is caused by a wrongful act, neglect, or default of another, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable, if death had not ensued, shall be liable in an action for damages notwithstanding the death of the party injured.”

It’s usually possible that a wrongful death claim and a survival action can both be filed at the same time.

Who Can File a Wrongful Death Claim in Colorado? 

Under Colorado law, wrongful death claims can be initiated by specific individuals closely related to the deceased. Initially, this right is primarily given to surviving spouses

If there is no spouse, the decedent’s children may file the claim, and if no children, a designated beneficiary and potentially the defendant’s parents are permitted to file a wrongful death claim.

It’s highly advisable for any potential claimant to speak with an experienced attorney regarding their right to file. Exploring eligibility and correctly identifying the legal beneficiaries can become a complicated process based on various factors like when the claim is filed and other specific circumstances surrounding your loved one’s life and passing.

Damages That Can Be Recovered in a Wrongful Death Claim 

In cases of wrongful death, the damages are divided into economic and non-economic. 

Economic Damages

These encompass tangible financial losses suffered because of the tragic incident. This could include:

  • Medical expenses
  • Lost wages
  • Property damage
  • Loss of services
  • Loss of retirement or insurance benefits the decedent would likely have earned in their lifetime

Non-Economic Damages 

These damages are intangible losses suffered due to the death of a loved one. Examples of this include:

  • Pain and suffering
  • Grief and sorrow
  • Loss of companionship  

Punitive Damages

In rare circumstances, punitive damages may be recoverable in a wrongful death claim. These damages are awarded as a way to punish the defendant and deter similar conduct in the future. These damages are only awarded upon a showing of fraud, malice, or willful or wanton conduct.

Contact a Lawyer As Soon As Possible

Both survival actions and wrongful death claims offer a way for families to seek justice and financial compensation after losing a loved one due to another’s negligence. Understanding the distinct differences between these two types of legal actions is important, particularly how they can affect what damages you might recover.

Since navigating through these complex lawsuits can be quite confusing, you should always speak to a personal injury attorney right away. Contact our Colorado Springs wrongful death attorneys today to schedule a free consultation.