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What is the Difference Between Wrongful Death and Survival Action?

Posted on December 13, 2021 in

Anytime individuals lose a loved one as a result of the negligent or intentional actions of another individual or entity, it is a tragic scenario. In these situations, individuals may be able to recover compensation for their losses. However, there are two types of civil legal actions that family members and estates can take to recover compensation in these situations – a wrongful death lawsuit and a survival action. Here, we want to discuss the difference between these two types of civil claims.

Understanding Wrongful Death Claims

In the state of Colorado, we can see that wrongful death is defined as a death caused by “a wrongful act, neglect, or default of another” individual or entity. Wrongful death claims can be filed in a situation where the deceased individual would have been able to file a personal injury lawsuit, had they survived (C.R.S. 13-21-201, 13-21-202 (2021).

Understanding Survival Actions

Survival actions in Colorado are a little bit different. The law in this state says that personal injury claims survive the death of the individual who would have been able to file the claim (C.R.S. 13-20-101). In other words, if an individual passes away while their civil personal injury claim is ongoing, this survival action is the way to extend this claim and compensation for the individual’s estate.

The Difference Between These Two Actions

There are some key differences between a wrongful death claim and a survival action, even though both of them seem fairly similar.

  • Only a personal representative is allowed to bring a survival action in Colorado, whereas wrongful death claims can be filed by a surviving spouse, child, parent, or personal representative.
  • Non-economic damages are only allowed to be recovered in wrongful death claims, not survival actions. Some of the damages not allowed in a Colorado survival action include the following:
    • Pain and suffering
    • Disfigurement
    • Lost earnings after the date of death
    • Punitive damages
  • Survival actions are specifically meant to cover losses incurred by the victim between the time their injury occurs and when they died.

Can There be a Survival Action and a Wrongful Death Claim?

Yes, it is entirely possible for there to be a wrongful death claim and a survival action at the same time in Colorado. Even though both of these claims arise from the same events surrounding the death, they are brought by different people, and for separate purposes. That said, if you have lost a loved one as a result of the careless or negligent actions of another individual or entity in this state, we encourage you and the personal representative of your loved one’s estate to speak with an attorney as soon as possible. Since both of these actions can exist concurrently, it would be beneficial to have a plan moving forward for both of these claims.

File These Claims Quickly

We strongly encourage you to speak to a Denver wrongful death attorney as soon as possible so you can begin the process of filing these claims in court. There are various statutes of limitation in place in Colorado for both wrongful death claims and survival actions. An attorney can examine the facts of your case and get to work filing the case appropriately and promptly in civil court.