A survival action is a type of lawsuit that can be filed after someone dies in order to recover damages that the deceased person would have been entitled to recover if they had lived. The purpose of a survival action is to allow the estate of the deceased to be compensated for certain losses and damages that occurred prior to the person’s death.
In Florida, the right to bring a survival action is codified in Florida Statute 46.021. This statute allows a personal representative of the deceased person’s estate to file a lawsuit on behalf of the estate for damages that the deceased individual would have been able to recover had they survived. The damages recovered in a survival action become part of the decedent’s estate.
If you’ve lost a loved one because someone else was careless, contact a wrongful death lawyer to learn more about survival actions.
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Examples of Survival Actions
Some common examples of when a survival action may be filed include:
- If a person is injured in a car accident due to another driver’s negligence and later dies from those injuries, a survival action could be filed to recover damages like medical expenses, lost wages, or pain and suffering incurred prior to death.
- If a person dies from medical malpractice, a survival action could be filed against the negligent doctor or hospital to recover for damages like pain and suffering or medical costs.
- If a person is killed in a premises liability accident due to unsafe property conditions, a survival action could be filed to recover damages incurred before the person’s death.
Difference from Wrongful Death Claim
A survival action is different from a wrongful death claim in Florida. While they are often brought together, a survival action covers damages incurred by the deceased before death while a wrongful death claim covers losses suffered by surviving family members after the death, like loss of companionship or financial support.
A lawyer for wrongful death can help determine whether you should file a survival action or wrongful death claim. In some cases, both are necessary to recover compensation for all the damages incurred by the family.
Requirements to File a Survival Action
You must meet the following requirements to file a survival action in Florida:
- The plaintiff must be the personal representative or administrator of the decedent’s estate. This is often the spouse, adult child, or other close family member.
- The lawsuit must allege that the defendant’s wrongful actions or negligence caused injury or damage to the decedent before their death.
- The lawsuit must be filed within the statute of limitations period, which is generally 4 years from the date of injury or death in Florida.
- Damages sought must be those the decedent could have recovered had they lived, like medical expenses, lost income, or compensation for pain and suffering.
A survival action is an important tool in Florida for recovering damages for a deceased individual’s own losses prior to their death. Talk to a personal injury attorney to determine if your family should file this type of claim.
Frequently Asked Questions About Filing a Survival Claim
Here are some other common questions about filing a survival action in Florida:
No, funeral costs are only recoverable in a wrongful death action because they are a damage incurred by the family, not the deceased.
Yes, survival actions and wrongful death claims are independent of one another. You may need to file both to recover full compensation.
No, Florida does not limit survival action damages. The plaintiff can recover any amount of compensation that the jury or judge determine is fair.
Yes, if the defendant intentionally harmed the deceased or was extremely reckless, the judge may award punitive damages to the plaintiff.
No, damages in a survival action are limited to what the deceased could have recovered had they survived and filed a personal injury claim.
