Strategies, Challenges, and Answers

Survival Actions

As the old saying goes, “You can’t take it with you”.  Under old English common law, that saying seemed to rule the day.  Back then, when a claimant died, so did his or her claim against a tortfeasor.  In response to this drastic and unpredictable consequence, laws were passed that allowed the claim to survive, even if the claimant did not.  Called a survival action, these statutes gave the estate of the decedent authority to prosecute a claim for injuries which accrued prior to the decedent’s death but did not cause the death itself.  Nevada law recognizes the survival of causes of action.  (See N.R.S. 41.100)

871748_mourning_angel In other words, if a person dies after having sustained an injury caused by a tortfeasor, that cause of action survives and can be prosecuted by the representative of the estate.  The representative can lay claim to all losses or damages sustained before death, including any penalties or punitive and exemplary damages which the decedent would have recovered if he had lived.  Those damages can include pain, suffering or disfigurement and loss of probable support, companionship, society, comfort and consortium.  The proceeds that are recovered are distributed as any other asset of the estate, generally to the residuary beneficiary, or according to the laws of intestate succession.

Even though the cause of action might survive, the death of the Plaintiff can have some serious practical consequences on the Plaintiff’s claim.  For instance, it is difficult to prove claims for pain and suffering if there is no testimony from the Plaintiff to back up those claims.

When dealing with a suit where the Plaintiff is a decedent’s estate, it is important to discern whether the claim is being brought as a survival action or a wrongful death. In a wrongful death case, the heirs can pursue their separate claims for grief and sorrow.  In a survival action, they may not.  In a wrongful death suit, the estate can claim damages for funeral expenses and final medical care leading to death.  There are no such damages in a survival action.

Whether it’s a wrongful death or a survival action, Mills and Associates has experience in handling both and is always available to offer assistance in these as other matters.

About Michael Mills

Mr. Mills practices in the area of civil litigation and appeals, with particular experience in matters involving trucking liability, insurance defense, insurance coverage, premises liability, products liability and defense of personal injury. Mr. Mills is a member of the Trucking Insurance Defense Association, the Defense Research Institute Trucking Committee and the Nevada Motor Transport Association. Mr. Mills is licensed to practice before the Nevada Supreme Court and the Utah Supreme Court. He is also licensed to appear before the United States Supreme Court, the U.S. District Courts for the Districts of Nevada and Utah, as well as the U.S. Court of Appeals for the Ninth Circuit. Mr. Mills has created 3 Blogs for the benefit of the insurance industry. He serves as editor and publisher of the Nevada Insurance Law Blog, the Nevada Coverage and Bad Faith Blog and the Nevada Trucking Law Blog.

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