If you have lost a loved one, you may feel anger on top of grief. Legal action cannot ease your pain, but by filing a survival claim, you can seek justice for the harm your loved one experienced while they were alive.
Family members sometimes aren’t sure which legal action to take or how to prove that someone harmed their loved one. At Emmanuel Sheppard & Condon, our compassionate Florida wrongful death attorneys can guide you through this difficult process.
We inform you of your legal rights and evaluate whether a lawsuit under the Florida survival statute is your best path toward maximum compensation.
Wrongful Death vs. Survival Action
Sometimes, family members are confused by the different legal actions available after a loved one’s death. Particularly, they wonder whether to file a wrongful death vs. survival action.
Wrongful Death Claim
A wrongful death lawsuit seeks compensation for the harm family members suffered due to their loved one’s death. This might include the emotional suffering or loss of financial earnings the family has experienced.
A survival claim allows the family to continue a claim that the deceased could have pursued while alive. Under the Florida survival statute, “No cause of action dies with the person. All causes of action survive and may be commenced, prosecuted, and defended in the name of the person prescribed by law.”
In other words, a survival claim seeks damages for the harm the deceased suffered. T
Unlike a wrongful death claim, a survival claim does not consider the impact of the person’s death on the family. The damages are based on what the person suffered when alive.
Should You File a Survival Claim or a Wrongful Death Claim?
Florida law does not allow the estate to recover damages for both wrongful death and survival action for the same injury, but courts allow you to pursue both claims and then elect the remedy that is best for you at the time of trial.
Deciding whether your loved one’s experience meets the criteria for a survival claim can be confusing. A skilled attorney can help you evaluate the circumstances, gather all information, and pursue the claim most likely to get you compensation.
You can also file a survival claim for an incident unrelated to your loved one’s death. For instance, let’s say your loved one slipped on a puddle in a supermarket, causing a brain injury that rendered him unable to work for a year.
The next year, you were driving your loved one to the barbershop when a drunk driver plowed into you, killing your loved one.
Under that scenario, you could file a survival action for the pain and suffering, medical bills, and lost wages your loved one experienced after the slip and fall. You could also file a wrongful death claim against the drunk driver for the pain and suffering you experienced from your loved one’s death.
Who Can File a Survival Claim?
The personal representative of the estate can file a survival claim. Survival claim damages go to the victim’s estate and are distributed according to the will or Florida intestate succession rules. Intestate succession means the process of distributing an estate when someone dies without a will.
In most cases, intestate succession distributes property to the spouse, children, or other close relatives. Your attorney can help you determine who is likely to receive the proceeds of a survival action based on your family’s situation.
What Are Survival Claim Damages?
Damages in a survival claim are the same as those the victim would have been entitled to when alive.
For instance, in a personal injury survival claim, the estate might sue for the victim’s:
- Medical bills,
- Property damage,
- Lost wages,
- Pain and suffering, and
- Loss of enjoyment of life.
Your attorney can help you calculate appropriate damages based on evidence related to your loved one’s experience. If you don’t have all the invoices, witness statements, and other evidence needed, our attorneys and investigators can help find this information.
How a Lawyer Can Help
When you feel vulnerable due to grief, you don’t need to face intimidating corporate attorneys on your own. You need a trusted advocate by your side. Finding an attorney who is compassionate, respectful, and zealous in representing you could mean the difference between a small settlement and a substantial one.
Ask Us Any Questions You Have for Free
Contact the attorneys at Emmanuel Sheppard & Condon for a complimentary consultation. We’ll review your case and advise you of the best legal path to compensation. Our legal team have been voted among the best in Pensacola.
For over 100 years, our law firm has assisted clients through dark days, and we would like to help you too. If you decide that you would like us to represent you, we charge you nothing until we win your case. You can count on honest, compassionate, and skilled representation as our attorneys seek the best possible outcome for your survival claim.