Usually, the right to use of a plaintiff expires upon the plaintiff’s death. An exception to this is where a statute permits a cause of action in order to “survive” the death of the plaintiff. The California Code of Civil Procedure 377.30 is one such statute. It permits the decedent estate’s personal representatives to sue for any (legal) damages he or she could have sued for had the person not died.
It is significant to note that wrongful death, as well as, survival actions are meant to compensate for the losses by different parties. The survival actions compensate the estate of the decedent for losses sustained by him or her before the demise.
On the other hand, a wrongful death suit compensates members of the family for losses sustained by them due to their loved one’s demise. Therefore, the personal representative of the decedent has to bring a survival cause of action under the California Code of Civil Procedure 377.30. If the estate of the decedent does not have one, it can be brought by his or her successor in interest.
In several cases, the personal representative of the estate will be one of the members of the family. However, it does not necessarily have to be. Some estates of decedents are represented by an accountant, an attorney, a close friend, or somebody else who is named in the trust or will of the deceased.
The damages recoverable in the action are restricted to actual monetary or economic losses sustained by the victim, following the wrongful act yet prior to his or her death. Since time must have been there for the person to sustain losses prior to the incident, it may not be legally sustainable if he or she was instantaneously killed. (Note that instantaneous demise does not affect their right of family members to bring the wrongful death suit).
The California state courts are reasonably kind in finding economic damages enough for the person’s estate to keep a survival cause of action. Therefore, if even a slight delay was there prior to the death took place, there will be typically some sort of “economic” injury – even if it is damage to clothing of the person or other minor individual property.
The usual economic damages that are included, but not limited to, in a survival cause of action are:
- Medical bills incurred by the deceased due to the wrongful act;
- Damage to the property of the person during the act; and/or,
- Wages he or she lost between it and the death’s date.