Did you know that in 2017 alone, 169,936 people died due to unintentional injuries?
No one can predict an accidental or intentional action that takes away your loved one. However, the pain of such a loss can stay with you for a long time. When you’re trying to seek justice for your loved one, you can file a survival action or a wrongful death suit. But which is which?
Here’s a guide detailing the survival action vs. wrongful death differences to help you know the best course of action.
What’s a Wrongful Death Suit?
Wrongful death is where a person dies due to a third party’s intentional, negligent, or reckless actions. These suits involve fatal accidents such as car accidents, professional malpractice, and product liability.
What’s a Survival Action?
A survival action is where the estate administrator for the deceased brings a suit to seek compensation for the person who died. The damages recovered relate to what the deceased would have received had they not died Examples include pain, suffering, and lost wages damages.
Survival Action vs. Wrongful Death
Many people are familiar with wrongful death, but not as many know what survival action is or their differences. Some of the common contrasts include:
Who Brings the Claim
A wrongful death suit is filed by a personal representative of the surviving family. Typically, the personal representative needs to be the deceased’s closest surviving relative, which is either a spouse, parent, or child.
A survival action, on the flip side, is brought by the person representing the estate. If the deceased had a will, then the person mentioned in the will can bring the action. Otherwise, it will likely fall on the parent, spouse, or child to represent the estate in filing the action.
At times, there is no surviving heir to represent the deceased’s estate. A personal representative who is either a family member or a probate court appointee will file the survival action on the estate’s behalf in such scenarios.
The Scope of the Charge
When you hire a wrongful death lawyer (of which you can learn more here on that) to file a suit, you’ll be looking for compensation to relieve the damages the beneficiaries suffer as a result. A survival action focuses on seeking compensation on behalf of the deceased by a party representing their estate.
Since each state’s law governs both a survival action and a wrongful death claim, the finer details may vary. However, there are some primary damages you will find in any state.
A wrongful death claim will generally seek:
In a survival action, the damages can encompass:
Furthermore, in some states, punitive damages may apply to a survival action while not being applicable in wrongful death suits.
Since a wrongful death suit is filed on behalf of the deceased’s survivors, they receive the benefits. Any compensation that comes from a survival action goes to the deceased’s estate.
Traditionally, compensation coming from wrongful death suits isn’t subject to estate taxes, while those received after a survival action can incur an estate tax.
How to Get the Best Settlement
As you work with your attorney to get the survival action or wrongful death suit through, you need a strategy to win the compensation you deserve.
Go in With a Particular Amount in Mind
Before you begin negotiating, you need to have a minimum acceptable amount within the range you feel the claim is worth. The estimation is a personal guide for you to help advance the talks, and it’s not something you share with other parties.
When the offer talks start going back and forth, you won’t be tossed like a leaf in the wind. You’ll have a better forecast of where you plan on landing as far as compensation is concerned.
With that being said, flexibility remains critical. If you uncover new information that weakens your claim, you need to adjust your baseline amount downwards. Similarly, if other factors come to light that make your case stronger, you may need to alter your baseline amount upwards.
Don’t Be Enticed by the First Offer
During compensation negotiations, it’s standard procedure to open the discussion with a very low offer. Why is this important? The insurer uses this tactic to analyze whether you understand how valuable your claim is and how patient you can be.
How you should respond to a first offer will depend on whether the proposed figure is too low such that it’s to test you or if it’s reasonable.
If the offer is reasonable, you can place a counteroffer with a figure that is slightly below what you stated in the demand letter. That way, the other party can see you’re negotiating reasonably and in good faith. From there, it’s usually relatively easy to hit an agreeable amount by both parties.
During the negotiation, you don’t have to go over all the facts of the case. Instead, focus on emphasizing the strong points that favor your claim to get the best settlement possible.
Get the Insurer to Justify a Low Claim
How do you react in a case where the insurer offers such a low offer that it’s clearly meant to gauge your assessment of the claim?
Don’t immediately lower the figure you’d quoted in your demand letter. Rather, ask the insurer to explain why they are countering with such a low offer.
Note down their responses because you’ll need to write a letter detailing each reason and your response.
During the next round of negotiations, you can ask the insurer for a response to your letter. Depending on the insurer’s case’s strength, they should now come back with a more reasonable offer.
Seek Justice for Your Loved One to Begin Healing
Losing a loved one due to an untimely death caused by another’s negligence or intentional actions is a deep wound that takes long to heal (if at all). To begin the journey to seeking justice and healing, take time to understand the survival action vs. wrongful death differences, so you know which course of action would be best to take.
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