When a fatal accident occurs, the family of the accident victim often takes legal action related to the loss of their loved one. Commonly, there are a lot of legal concepts or terms thrown about when pursuing such claims. Two common legal concepts that you are likely to hear are “wrongful death” and “survivor action.”

Wrongful Death

A wrongful death action can be brought when an individual is killed because of another person’s or entity’s negligence and the surviving family suffer monetary loss because of the death. Generally, the action is filed by the personal representative of the accident victim’s estate and any award for damages belong to the estate.

The procedure for bring a wrongful death action and the types of damages that may be recovered are governed by the Tennessee statutes. These damages include certain “incidental damages” suffered by the lost loved one’s next-of-kin, including:

  • Lost earnings.
  • The value of tangible services provided by the deceased to other family members, for example, in the case of a spouse, homemaker services.
  • The value of such intangibles as attention, guidance, care, protection, training, companionship, cooperation, affection, love and, in the case of a spouse, sexual relations.

In some cases, punitive damages may be awarded. Tennessee law allows for the recovery of punitive damages and such damages are usually awarded to deter similar future behavior by the negligent party or where the act of the negligent party was conducted with malice.

Survival Actions

The right to bring a personal injury claim against the responsible party does not pass with the death of the victim. Instead the right “survives” the accident victim and the distributees of the decedent’s estate can recover damages for the personal injury the decedent suffered. The personal representative can bring a survival action with the wrongful death action for the benefit of the estate.

Significantly, damages for pain and suffering may be awarded in a survival action. To find damages for pain and suffering, the fact-finder will likely determine the severity of the pain, the level of consciousness of the victim, the duration of suffering and the victim’s awareness of imminent death.

While these two legal concepts sound similar, the legal actions, standards and procedures to file a wrongful death suit and/or a survival action are different. If you are injured or lose a loved one in a motor vehicle accident, you should contact an experienced personal injury attorney who can determine your path to recovery and obtain full and fair compensation for your injuries or loss.