The family should maximize the amount of money that they receive in a wrongful death case. In South Carolina, there are two primary ways that a family could recover damages when a loved one has died because of someone else’s actions:
- Wrongful death claims
- Survival action claims
The two types of cases are complementary to each other, as opposed to mutually exclusive. A family can file both of these types of cases to recover the highest amount of damages. An experienced wrongful death attorney in Florence can advise your family about how to file these cases and receive the most possible money. Call McCall Law today to schedule your free initial consultation.
You Must Prove Fault to Win a Wrongful Death or Survival Action
Both of these cases are an essential part of your personal injury remedies. There are many differences, but there are also some key similarities. In the end, your goal is the same – to receive all the money that your family deserves when your loved one has died.
First, we will begin with what a wrongful death and survival action have in common. Both require a showing that the responsible party was to blame for the accident that killed your loved one. You would need to show that someone else was negligent through a preponderance of the evidence.
Wrongful Death and Survival Actions Belong to Different Groups of People
In order to understand the exact differences between a wrongful death and a survival case in South Carolina, you need to know who has the right to file each case.
A wrongful death is the family’s personal injury action. Here, the personal injury that the family suffers is the loss of their loved one. They are being compensated for their own injury.
The survival action belongs to the deceased person’s estate. The estate encompasses assets and debts that were owed by the deceased person in their lifetime. Here, the survival claim is an asset that belongs to the estate because it represents money that the deceased person could have collected had they still been alive. The estate could include the same people who would receive wrongful death proceeds, but not always.
How Proceeds of the Two Actions Are Divided
South Carolina law dictates how the proceeds of the wrongful death case are divided:
- If there is only a surviving spouse, they will receive all the proceeds of the case
- If there is a spouse and children, the spouse would receive half, and the children would divide their half of the proceeds
- If there are children but no spouse, the children will divide the entire amount proportionately
- If there are parents but no spouse or children, the parents will equally divide the money
Survival action proceeds may be divided differently in South Carolina. Since they belong to the estate, they are distributed in accordance with the terms of the estate. There may be some people who are not eligible to receive wrongful death proceeds who end up being paid for the survival action.
Damages in the Two Cases Are Different
The nature of the damages in these two cases is different. In a wrongful death case, the damages that the family will suffer going forward as the main issue. These damages measure what the family has lost and what it would cost them in the future.
Wrongful death damages include:
- The wages that the deceased person would have earned had they lived and continued to work
- Compensation for the distress and trauma that the family suffers from tragically losing a loved one
- Payment for the loss of a close and loving relationship with the deceased person
- The loss of consortium with the deceased person
- The loss of the support and guidance provided by the deceased person
- Compensation for the loss of household services performed by the loved one
- Burial and funeral expenses
South Carolina law states that a jury may award exemplary damages when the wrongful death was the result of recklessness and malice.
Survival action damages are backward-looking by nature. They are intended to measure what the deceased person endured between the time of their injury and death.
Survival action damages would be more if the deceased person lived for some time after the accident. For example, if they had to undergo several medical procedures that were not enough to save their life, the deceased person may have suffered more damages themselves.
Survival damages would include:
- The medical costs necessary to treat the accident victim
- The emotional distress that they suffered after the injury
- Lost wages for the time that they could not work
- Pain and suffering for what they endured prior to death
Survival and Wrongful Death Cases Are Filed Together
While, by definition, there are different plaintiffs in a wrongful death and survival action, the two cases are usually filed together. These cases involve the same operative set of facts. It would not make sense, nor would it be efficient for the court system, to have two separate trials. The insurance company would also not want these claims filed separately because they would increase their own expenses. Thus, while the two legal actions are technically different, they become part of the same case. However, the proceeds of the cases could be distributed differently.
Both cases are filed by the same person. The executor of the estate would file both the survival and wrongful death action. Once the cases are settled or won, the proceeds would then be divided. Also, the court would need to approve any settlement that pays proceeds to a minor.
Contact Our Florence, SC Wrongful Death Attorney
Although your family is going through a difficult time, you need to begin the legal process as soon as possible. It can take some time to get the money that you deserve, so you should contact an attorney today. McCall Law can help you by fighting for your family to receive as much money as possible. To speak with our experienced wrongful death lawyer, you can contact us through our website, or you can call us today at 843-279-8148.