When someone dies as a direct result of negligent behavior, the law allows grieving family members to pursue a claim against the at-fault party. The specific type of claim can vary, however, depending on the circumstances. While a wrongful death action lets you recover damages incurred as a result of a loved one passing away, survival actions instead seek damages the person would have recovered if they hadn't died.
Wrongful Death Cases in Louisiana
In either a wrongful death lawsuit or a survival action, the family needs to select someone to act as a personal representative for the deceased. Under state law, a wrongful death suit can be brought by the surviving:
- Marriage partner
- Father or mother, if the spouse is deceased and there are no children
- Siblings, if the parents, child, or spouse are no longer alive
- Grandparents in situations where there is no spouse, child, parent, or sibling available
That breakdown isn't always as cut and dried as it seems, however, which is why you should consult a legal professional quickly after a loved one passes away, as there are potential issues to untangle before going to court. For instance, a parent who left the family and didn't take part in raising or financially supporting a child is legally considered to have "pre-deceased" their child and will likely be barred from bringing a suit. Depending on the family makeup, an unexpected member may have to pursue the claim, such as a spouse of one of the deceased's children.
When that issue is resolved, the next step is to prove your loved one provided for the family and provide documentation of the specific amount of income earned. From there, your lawyer can argue how the death impacted the survivors while pursuing damages covering:
- Financial support over the amount of time the deceased would have supported the family financially if they hadn't passed away. That timeframe typically spans to age 18 for children, or until the person's expected retirement age for their spouse.
- Loss of support, services, and affection
- Mental anguish
- Burial and funeral expenses
Other extenuating circumstances can change the amount sought in a wrongful death claim, which is why it is crucial to work with a skilled attorney who has experience in these types of cases. For instance, those time frames may change if the deceased was expected to provide payment for a child's college tuition costs or in situations where the person who passed away was financially supporting retired parents.
How Survival Action Differs From Wrongful Death
While it draws from the same list of people who can act as representatives, a survival action is distinct from a wrongful death suit in one crucial way. A survival action revolves around seeking damages the accident victim would have been awarded if they hadn't passed away due to the injury. Those damages can potentially include factors like lost wages and the pain and suffering experienced by the victim before they died.
Survival actions may become complicated by the nature of the accident and the victim's injury. If your loved one died at the scene or shortly after the accident, a representative typically can't seek lost wages. They may still be eligible for non-economic damages covering issues like physical suffering or mental anguish, however.
Both survival actions and wrongful death suits also have a crucial limited time frame to act. Under Louisiana law, a family member can only pursue a wrongful death action or survival claim for up to one year after the date of death.
In either case, the surviving family member will need an attorney to file a lawsuit within that timeframe. A lawyer acts as the voice of your departed family by gathering all the required evidence and presenting the facts in court, as well as helping you handle common defenses from the at-fault party that likely doesn't want to be held responsible for an untimely death.
Don't Wait to Talk to an Experienced Wrongful Death Attorney
Did someone you love pass away in an accident that shouldn't have happened? Set up a consultation with our trial-ready team to discuss your case and decide the best route forward in your family's unique situation.