There are significant differences between survival actions and wrongful death actions in Florida. Survival actions are continuations of lawsuits that were started while an individual was alive but who passed before the litigation process concluded.
Wrongful death actions however, are completely new lawsuits, separate and apart from any lawsuit a deceased individual may have previously commenced before he or she died.
The Florida Survival Action
Under Florida law, Florida Stat. Ann. 4-46.21, “No cause of action dies with the person. All causes of action survive and may be commenced, prosecuted, and defended in the name of the person prescribed by law.”
As stated above, for a survival action to come into play, a lawsuit already has to have been in effect, with the proper parties merely stepping into the shoes of the deceased. Therefore, a survival action is a lawsuit that the deceased person could have brought if he or she were still alive.
Proper Parties to the Action
The majority rule, which is followed here in Florida, provides that the representative of the deceased person may recover any damages to which the deceased person would have been entitled.
Further, under the law, here in the Sunshine State, the survival action may be brought by a representative of the deceased person’s estate, such as an administrator, executor, or personal representative. This may include one or more members of the deceased person’s family, or someone who was appointed prior to the death of the deceased.
How Does a Survival Action Differ from a Wrongful Death Claim
Wrongful death claims provide the family members of the deceased a legal right to pursue compensation for the losses they have experienced due to the death of their loved one. These losses may be for loss of companionship, support, affection, and other losses.
Survival actions, on the other hand, are merely extensions of already existing legal claims that were already being pursued prior to the death of the now deceased. Ultimately, if a lawsuit was not already in existence before the death of the deceased, a survival action cannot be initiated.
Contact a Miami Attorney
There is a great deal of pain and suffering involved in dealing with the unexpected loss of a loved one. This is especially true if that loss of life was due to a mistake of another.