In our blog we will try to provide you with general information regarding car accidents, motorcycle crashes, and personal injury cases, as well as updates in important cases and statutes dealing with family law in New Hampshire. This is not to be construed as legal advice. Every case is unique and small facts can make a difference.
How Survival Statutes Affect Personal Injury Lawsuits
If you are in the processing of filing a personal injury claim, you might have heard the term “survival statute” mentioned in conversation. You might be wondering exactly what this is and what type of effect it could have on your New Hampshire personal injury lawsuit.
In most states across the country, personal injury claims and lawsuits are allowed to proceed even if the plaintiff or victim passes away. This type of lawsuit is referred to as a survival action. Without this specific legal provision, an injury lawsuit could be dismissed if the primary plaintiff were to pass away from unrelated reasons before the case could be resolved in court.
Wrongful Death Lawsuits vs. Survival Actions
The majority of states within the United States allow survival actions that enable the deceased plaintiff’s to assume the role of plaintiff in a personal injury lawsuit that was initiated before the victim’s death. Despite their similarities, survival actions and wrongful death lawsuits should not be confused with one another. There are three primary differences between the two:
1. The Victims. Wrongful death lawsuits address the injuries suffered by the victim’s family members and loved ones. By comparison, the primary focus of a survival action is the injuries the descendent suffered while they were still living.
2. The Different Types of Damages. In a survival action, the victim’s estate is legally allowed to recover monetary damages for the deceased’s economic losses and pain and suffering. In a wrongful death lawsuit, the legal actions are primarily focused on the monetary losses that have been suffered by the victim’s family members.
3. How Damages Are Distributed. The monetary damages that are obtained through a survival action are distributed to the victim’s estate, instead of being given directly to the victim’s family members. The damages are then passed on to the victim’s living family members in accordance with the victim’s will. If a will does not exist, then the damages are distributed according to state law.
It is important to bear in mind that each state has its own set of statutes regarding survival actions, and these statutes can vary widely from one state to the next. There are some states that do not include certain types of personal injury lawsuits. For example, Illinois state law does not allow damages recovered in libel or slander lawsuits to be distributed to another family member or person after the plaintiff has passed away.
Other frequently seen limitations include the state’s statute of limitations, certain laws that may prohibit survival actions altogether, and whether or not the plaintiff died from causes that were unrelated to the injuries suffered in their accident.
Damages For Surviving Relatives
Ostensibly, the purpose of a survival action is to provide compensation to a victim for the injuries they have suffered, but survival actions also produce an effect on the victim’s family members as well.
When the plaintiff in a personal injury lawsuit dies of alleged abuse or causes unrelated to the injuries sustained in the accident, their family members cannot pursue a wrongful death claim. In these scenarios, the only method for family members to receive monetary compensation related to the injuries the plaintiff suffered is through a survival action. The availability of a survival action also produces an impact upon a plaintiff’s ability to pursue a lawsuit while they are still alive, specifically in cases where elder abuse has been alleged. When a survival action is available, it is not uncommon for a personal injury lawyer to pass on taking the case altogether.
New Hampshire state laws governing survival actions are complex, and the rules are constantly evolving. If you believe that you may a claim, please contact one of our experienced NH personal injury lawyers today for a free consultation.
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