Pennsylvania Wrongful Death Claims vs. Survival Actions

Many people are surprised to discover that Pennsylvania law recognizes not one, but two types of actions that can be brought following the death of a family member or loved one from negligence or an intentional tort.

Pennsylvania wrongful death and survival actions are respectively codified under 42 Pa.C.S.§ 8301 and 42 Pa.C.S.§ 8302. These separate causes of action share similarities but are “separate and distinct,” as per Tulewicz v. Southeastern Pennsylvania Transportation Authority, 606 A.2d 427, 431 (Pa. 1992). The main difference between the two types of claims is who can make the claim and what types of damages they can seek.

Call the Pennsylvania wrongful death lawyers at The Reiff Law Firm at (215) 709-6940 for a free case evaluation.

Wrongful Death Actions

The Pennsylvania Wrongful Death Statute was first approved on November 15, 1972, and has been amended several times over the last forty years.

What is It?

Under this law, an action may be brought to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another. This is only allowed if no recovery for the same damages was claimed during their lifetime to avoid a duplicate recovery.

Who Recovers?

42 Pa.C.S. § 8301(a) By way of further explanation and as a simplistic clarification of this statute, a wrongful death claim is one that seeks to “recover damages (usually in the form of monetary compensation) for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another.

Survival Actions

Survival actions are a bit different and focus on what the victim could have sued for if they survived their injuries.

What is It?

The Pennsylvania Constitution provides that in the case of death from personal injury, the right to sue survives the victim and passes to their estate. The Pennsylvania Constitution also provides that, except in Workers’ Compensation cases, the General Assembly (state legislature) may not limit the amount to be recovered for injuries resulting in death. See Pa. Const. Art. III, § 18.

Basically, a survival action continues the victim’s case.

Who Recovers?

This cause of action provides damages for the victim’s estate, since the victim is no longer alive to collect damages. These then pass on to their heirs under certain rules.

Who is Eligible to Bring a Wrongful Death or Survival Action?

The rules for who can sue are a bit different between these cases:

Wrongful Death

As stated, the purpose of the Pennsylvania Wrongful Death Act is to pay the victim’s family for their damages. The statutory language specifically outlines those family members who can get paid:

• The spouse
• The children or
• The parents of the deceased.

However, the case is actually filed by the personal representative or executor of the estate, which might be a spouse, parent, or another eligible beneficiary or someone else entirely.

Survival Action

A survival action is also brought by the personal representative of the decedent’s estate to recover the victim’s losses. This money is ultimately paid out of the estate to the victim’s heirs.

The heirs might be listed in the victim’s will, if they had one. Otherwise, the Pennsylvania intestacy statute lists who gets what shares of the estate, giving it all to the spouse and children unless the victim didn’t have either.

Damages Available in Survival vs. Wrongful Death Actions

When you file both cases, you typically file them together. However, it is essential to note that “the actions for damages are cumulative and are not to overlap or result in duplication of damages.” Kiser v. Schulte 648 A.2d 1 (Pa. 1994). That means each claim essentially has its own damages.

Survival Actions

Any damages the victim faced before death can be claimed, such as

• Pre-death medical expenses and end-of-life care
• Lost wages before death
• Pre-death pain and suffering.

Pre-death pain and suffering can be tricky because an accident might kill someone instantly, leaving no room for pain or anticipation of injury/death. That might mean no pain and suffering damages.

Accidents where the victim anticipated their injury/death or where they lingered for a long, painful time after injury have higher pain and suffering damages.

Wrongful Death

In a wrongful death case, the family claims the damages they suffer because of the death:

• Emotional distress
• Lost companionship
• Lost income and support
• Lost inheritances and investments
• Funeral and burial costs (at a reasonable value).

Note that you cannot recover anything twice; these claims have separate damages.

Statute of Limitations for Wrongful Death Claims

Families get two years from the date of death to file a wrongful death lawsuit. If the victim lingered for some time after the injury, the family cannot file until after the victim actually passes away.

Statute of Limitations for a Survival Action

A survival action must be filed within two years of the date of injury under 42 Pa.C.S. § 5524(2).

It is important to realize that a survival action may accrue prior to the date of death and thus have a different timeline from the wrongful death action. If the victim files their own injury lawsuit before they die, then they pass away later, the personal representative can step in and continue the lawsuit, bringing in the wrongful death claim and additional damages later.

FAQs for Wrongful Death vs. Survival Actions

What Are the Main Differences Between Wrongful Death and Survival Lawsuits?

There are three major differences between these cases:

1. The wrongful death lawsuit is for the victim’s family, while the survival action is the lawsuit the victim would have filed if they survived.
2. The wrongful death damages are paid directly to the family, while the survival action damages go into the estate.
3. Only the spouse, children, or parents can benefit from a wrongful death lawsuit, while any heirs listed in the victim’s will get damages through the estate from a survival action.

Do You File Wrongful Death and Survival Actions Separately?

No, you typically file both claims together.

If there was a delay between the victim’s injury and death, you may need to file the survival action as a regular personal injury case before they die, then bring in the wrongful death lawsuit after their death.

Who Files a Wrongful Death Claim?

Both the wrongful death and survival actions are filed by the personal representative or executor of the estate (different names for the same person).

What is a Personal Representative?

When someone dies, all of the money/assets/property they leave behind is assembled into their “estate.” The personal representative, a.k.a. executor, is the person designated to put the estate together, close accounts, pay off debts/bills/taxes, and then distribute the estate to the deceased’s heirs.

Who Selects the Personal Representative to File a Wrongful Death Claim?

If the victim died with a will in place, then the will sets the personal representative. If they died without a will, the court can appoint a personal representative.

Usually, wills and courts pick someone close to the deceased, such as a spouse, sibling, or parent.

Does the Personal Representative Get Paid in a Wrongful Death or Survival Action?

The personal representative is often allowed to take a reasonable fee (or a fee listing in the will) for their services. Otherwise, they do not get paid from either lawsuit by virtue of being the personal representative.

However, the personal representative is usually a spouse, parent, or sibling, which might mean they have something to gain through a wrongful death or survival action, too.

Can Unrelated People Recover in a Wrongful Death Suit?

Wrongful death suits pay damages exclusively to the spouse, children, or parents of the victim. This can include adopted children, but otherwise, there must be a blood relationship.

However, the survival action pays damages into the victim’s estate, then that is distributed according to their will. If the will lists heirs outside of blood relations, they are able to accept this money in a roundabout way.

Which Case Should I File?

In most cases, you are going to want to file both claims. There are damages in each case that you cannot get through the other one, so it is always best to pursue both courses of action.

Does Insurance Cover Wrongful Death and Survival Lawsuits?

Most individuals cannot afford to pay for deaths from accidents that they cause, but companies may be in a better position to afford damages. Nonetheless, insurance is often the only way people would be able to afford damages, and insurance policies routinely cover wrongful death cases.

However, getting car insurance, homeowners insurance, and business insurance to actually pay you is often difficult without a lawsuit and help from a lawyer.

Call Our Pennsylvania Wrongful Death Lawyers Today

Contact the Philadelphia wrongful death lawyers at The Reiff Law Firm at (215) 709-6940 for a free case review.