The terms “wrongful death action” and “survival action” are deceptively similar. In Virginia, a wrongful death action has to do with the way a person died. A survival action, on the other hand, has to do with any litigation or causes of action that were pending when a person died. Still confused? Read on, then, to learn all about wrongful death and survival actions in Virginia.
Wrongful Death Actions
Virginia law allows for a wrongful death action to be brought when a person’s death is caused by the wrongful act, neglect, or default of a person, corporation, or vessel. Essentially, if a person or company (or a ship) causes a death by doing something they shouldn’t have, or by not doing something they should have, then there might be a wrongful death claim. In order for the claim to be brought under the Virginia statute, the death has to have taken place in Virginia.
However, knowing, loving, or even being related to the deceased person is not enough to bring a wrongful death suit. Only a deceased person’s “personal representative” can bring a wrongful death suit. Under Virginia law, a “personal representative” mainly means the executor of a deceased person’s will or the administrator of a deceased person’s estate. Virginia law also allows persons, such as close family members, to qualify as the deceased person’s personal representative solely to bring a wrongful death lawsuit.
Unlike a survival action, a wrongful death action is based more on the loss suffered by the personal representative and deceased person’s loved ones. Thus, sorrow, mental anguish, and solace—which may include society, companionship, comfort, guidance, kindly offices and advice of the deceased person—as well as funeral expenses are recoverable. These damages are in addition to things like the deceased person’s loss of income or medical expenses related to the injury resulting in death.
Survival Actions
A “survival actions” is a legitimate cause of action that survives death. In other words, if a valid claim existed while the deceased person was alive, then it can survive the death of the person making the claim; the death of the person against whom the claim is being made; or the death of both those people. In the event of a death during a pending case, the lawsuit would be continued by that party’s personal representative. Damages in these cases are awarded the way they would be under the original claim, with the notable exception that punitive damages cannot be awarded if the party who caused the injury—i.e., the defendant—has died.
Survival actions and wrongful death claims are thus very similar. However, a plaintiff cannot succeed on both types of claims at the same time. For example, if a personal representative continues the original personal injury claim (as a survivorship action), filing an additional wrongful death claim would be futile—since both claims come out of the same incident, recovery can only be had for one.
Have You Lost a Loved One Due to the Negligence of Another? Contact Fishwick & Associates to Discuss Your Legal Options
It is never easy to lose a loved one. Hopefully the distinction between “wrongful death” and “survival action” is one that will not come up in your life, but if it does, be sure to contact an attorney to help you get the compensation you deserve while leaving you to grieve in peace. To schedule your confidential consultation, complete our online contact form or call us at 540-345-5890.
References
Platt v. Griffith, 299 Va. 690, 858 S.E.2d 413 (2021).
Va. Code Ann. § 8.01-52.
Va. Code Ann. § 1.-234.
Va. Code Ann. § 8.01-25.
Va. Code Ann. § 8.01-50.
Va. Code Ann. § 8.01-56.