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What Is A Survival Action?


If you and your family are ever placed in the horrible position of losing a loved one suddenly, your minds are going to be on mourning more than anything else. However, in some circumstances, it is worth it to consider bringing a wrongful death lawsuit against the person or persons that you believe may have contributed to the death of your loved one. There is more than one type of wrongful death lawsuit, and it is incumbent on you to research which one might be the most appropriate for your situation.

The Family Or The Estate

There are two types of wrongful death lawsuits in Florida law. The first is the standard wrongful death suit, which is usually filed by the personal representative or the deceased person’s estate on behalf of the family. This type of lawsuit is filed to seek damages for injuries like pain and suffering, lost wages (and future earning potential) and other causes of action that are not necessarily tangible. Any proceeds, if a judge rules in favor of the plaintiff, belong to the family exclusively.

A survival action, by comparison, is not a new lawsuit, technically – it is a continuation of any claims the deceased person might have had if they had lived. For example, a person killed in a car accident might, had they lived, been able to sue for negligence or another personal injury claim. A survival action continues those claims, as under Florida law, “no cause of action dies with the person.” Survival actions are brought by the personal representative, but any proceeds belong to the deceased person’s estate, since they would belong to the deceased person if they were still living.

The Election of Remedies Doctrine

Because there are marked differences between standard wrongful death suits and survival actions, it is understandable that one might wonder why the family of a deceased person might not simply try to mount both. The answer for that lies in Florida’s election of remedies doctrine, which tries to prevent plaintiffs collecting what is seen as a windfall from factually inconsistent remedies. In other words, no one can collect two compensatory verdicts from the same set of facts.

Filing a standard wrongful death action seeking compensation for pain and suffering (among other injuries) effectively states that pursuing a survival action is impossible, because both actions would not be supported by the same set of facts. If you pursue a survival action, a wrongful death action cannot be supported at the same time, because the court can only take notice of one set of facts. Under Florida law, a family or estate may be able to file both types of action, and then move to have one dismissed before judgment, once they have seen which lawsuit may offer the most appropriate amount of compensation.

Contact An Orlando Wrongful Death Attorney

No one should ever have to lose a loved one suddenly. However, it does happen, and if it happens to you, being prepared with the right information can make a difficult process marginally easier. Having a knowledgeable attorney on your side can also help. The Orlando wrongful death lawyers at the Hornsby Law Group are happy to sit down with you and try to help you work through what can be a confusing time. Call our office today to set up an appointment.


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