In a survivorship action, the person who is representing the interest of the decedent’s estate is an executor or executrix. The executor is the person who is bringing the survivorship claim. Because a survivorship claim is all about the continuation of the decedent’s lifetime claim. This is what about the decedent lost. What damages fall under the survivorship column? Whatever conscious pain and suffering the decedent had before he died, clearly falls under the survivorship column. You do not need proximate cause.
1. If someone dies instantaneously, there is no survivorship claim. The threshold prerequisite to a survivorship claim is to show that in fact the person had some conscious pain and suffering before they died. Expert testimony is needed to prove that they did suffer and what is its value e.g. airline crashes.
2. Personal Effects – Clothing falls under this category.
3. The percentage of the decedent’s lost income that they would have used for their own maintenance. You take the total lost income over normal life expectancy, let the economists reduce that to its present value and then take whatever percentage of that that would have gone to the maintenance of the family, put that in the wrongful death column and whatever percentage of this person’s income that they would have used for themselves, that goes in the survivorship column.
This is where wrongful death and survivorship claims can become very unseemly. Often times we have very disparate interests here. Folks that qualify as beneficiaries for wrongful death they may be different people than who is in charge of the decedent’s estate. All of a sudden, somebody finds out they qualify as a beneficiary under a wrongful death statute and they realize they may come into some money. This makes for very interesting deposition testimony.
Loss of consortium: Money damages for loss of sexual relations
If the decedent contributed to the happening of his accident, if comparative fault could have been an affirmative defense to his lifetime claim that comparative fault defense will carryover and impact the survivorship claim and the wrongful death claim as well.
Defenses based on conduct of the beneficiaries. Teeter v. Missouri Hwy and Transp. Commission. Mother’s contributory at fault while driving killed daughter. Her percentage of recovery for wrongful death will be impacted due to her comparative negligence but that will not impact the husband’s claim. Be mindful of the decedent as well as any beneficiary.
If you or a loved one has a claim for survivorship for a wrongful death, call the experienced injury attorneys at The Justice Law Center
702.731.0000 | 1100 S 10th St Las Vegas Nevada 89104.
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