Wrongful Death vs. Survival Action
When a loved one tragically passes away due to someone else’s negligence, the emotional toll and financial costs can be overwhelming. Alongside the grief, families are often confused about their legal options for holding the responsible parties accountable. In Indiana, two primary legal avenues exist for such situations: Wrongful Death Claims and Survival Actions. While they may seem similar at first glance, each serves a different purpose and follows different rules under Indiana law. Below we take a look at what these claims have in common and how they differ. If you lost a loved one in an Indiana car accident or work accident, or due to medical malpractice or other instances of negligence, contact Lee Cossell & Feagley to discuss your options with a dedicated Indianapolis personal injury and wrongful death attorney.
What Is a Wrongful Death Claim?
A Wrongful Death Claim is a lawsuit brought by the legal representative of the deceased’s estate, or by the deceased’s surviving family members, such as a spouse, children, or parents. The objective of a wrongful death claim is to compensate family members for the financial and emotional losses they have suffered due to the death of their loved one.
Eligibility for Filing a Wrongful Death Claim in Indiana
According to Indiana Code § 34-23-1, a wrongful death claim can only be filed if the deceased would have been entitled to bring a personal injury claim had they survived. The key elements to prove in a wrongful death claim include:
- The death was caused by the defendant’s negligence or wrongful act.
- The deceased left behind a spouse, child, or dependent relative.
- The surviving family members have suffered financial and/or emotional damages as a result of the death.
Types of Compensation Available in Indiana Wrongful Death Claims
Surviving family members may be eligible to receive various types of compensation for the harm they have suffered or will suffer from the death of their loved one, such as:
- Medical expenses incurred before the death
- Funeral and burial expenses
- Loss of financial support and benefits
- Loss of companionship, love, and care
What Is a Survival Action?
In contrast to a wrongful death claim, a survival action is a lawsuit that “survives” the deceased. This means that the action is filed on behalf of the deceased’s estate, and it aims to recover damages that the deceased would have been entitled to claim had they survived the incident. Put another way, the plaintiffs in a wrongful death case are seeking compensation for the damages they have incurred due to the death of a family member, while in a survival action, the plaintiffs are seeking compensation for the harm done to the deceased.
According to Indiana Code § 34-9-3, the estate in a survival action may receive compensation for:
- Medical expenses incurred due to the injury leading to death
- Pain and suffering experienced by the deceased before death
- Lost wages and benefits that the deceased would have earned had they survived
Summary of Key Differences Between Wrongful Death and Survival Actions
Purpose of the Claim: Wrongful death focuses on compensating the surviving family members, while survival actions are geared toward recovering damages that the deceased could have claimed.
Types of Damages: Wrongful death claims often cover funeral expenses and loss of companionship, which are not covered in survival actions.
Who Can File: Wrongful death claims are usually filed by surviving family members, whereas survival actions are filed by the representative of the deceased’s estate.
Get Help With Wrongful Death Claims and Survival Actions in Indianapolis
A skilled and experienced personal injury will often join both types of claims together in one case to maximize the compensation available, which also reflects the measure of justice one can obtain for the life of a loved one that was needlessly taken away. For personalized assistance in Indianapolis or statewide, contact Lee Cossell & Crowley at 317-631-5151 for a no-cost, confidential consultation.