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What Is the Difference Between Wrongful Death and Survival Action?

Posted on May 16, 2022 in

In the aftermath of losing a loved one caused by the careless from negligent actions of another individual or entity, it may be possible for family members and the estate of the deceased to recover compensation for their losses. The two civil avenues for recovering this compensation include a wrongful death lawsuit and a survival action. Here, we want to discuss the differences between these two civil actions in Colorado.

survival action

Wrongful Death Claims and Survival Actions

In Colorado, wrongful death claims can be filed anytime a person loses their life due to “a wrongful act, neglect, or default of another” individual or entity (Colorado Revised Statutes §§ 13-21-201 through 13-21-204). These claims seek to provide compensation to family members for the losses they sustain as a result of the death.

When we examine Colorado Revised Statutes §§ 13-20-101, we can see that survival actions are the “personal injury lawsuit” that survives the death of the deceased individual. Put simply, if the deceased would have had a valid personal injury claim against the at-fault party, had they lived, then a survival action will likely also be valid. Survival actions are a continuation of the personal injury situation.

On the surface, both a wrongful death claim and a survival action in Colorado look very similar. They both can occur after a person loses their life due to the actions of another. However, there are some very important differences between a wrongful death claim and a survival action that you need to understand.

  • Wrongful death claims must be filed by a survivor of the deceased individual. This is typically a spouse or children, but it may include the deceased’s parents in certain circumstances. For a survival action, only a personal representative of the deceased person’s estate is allowed to file the claim.
  • Non-economic damages, such as pain and suffering losses, are only available through wrongful death claims and not survival actions.

Can There be Both a Survival Action and a Wrongful Death Claim in Colorado?

Yes, it is certainly possible for there to be both a wrongful death claim and a survival action at the same time for the same death. However, keep in mind that two different individuals are responsible for filing these claims and for different purposes. This survival action will represent the victim’s direct losses, whereas the wrongful death claim will help provide support for financial and emotional losses to the family members. Both of these claims can move forward concurrently.

Will You Need an Attorney for a Wrongful Death Claim or Survival Action?

Anytime a person loses their life due to the careless or negligent actions of another individual or entity in Colorado, an attorney needs to get involved to help family members or the estate of the deceased. Often, the family members of the deceased will work with a Denver wrongful death lawyer, but the personal representative of the estate may choose to work with a different attorney to move forward with a survival action. Sometimes, one attorney will handle both the wrongful death claim and the survival action at the same time.

Both wrongful death claims and survival actions can be challenging, particularly when it comes to proving liability and recovering the compensation. In many cases, these claims are settled out of court through insurance carriers, but that is not always what happens. It may be necessary to file these claims and civil court and go all the way to a jury trial to recover compensation.