Distinguishing between Survivorship and Wrongful Death Actions (California)

Tahj Emmanuel Gomes

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Litigation Lawyer - Chico, CA

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Posted about 4 years ago. Applies to California, 2 helpful votes

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An injured person's cause of action is usually not lost by reason of the person's death. Unless otherwise provided by statute, it survives subject to the applicable limitations period and passes to the decedent's successor in interest, who can assert the cause of action on behalf of the decedent. (See California Code of Civil Procedure sections 377.20(a) and 377.30). California Code of Civil Procedure sections 377.10, et seq. establish rules relating to these kind of actions, which are commonly called survivor (or "survivorship") actions. (See California Code of Civil Procedure section 377.10 et seq.). "In the typical survivor action, the damages recoverable by a personal representative or successor in interest on a decedent's cause of action are limited by statute to 'the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement.'" (See Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1264-1265, 45 Cal.Rptr.3d 222, italics in original, citing California Code of Civil Procedure section 377.34). California Code of Civil Procedure sections 377.60 et seq., by contrast, establish rules regarding what are commonly called "wrongful death" actions, and are actions brought by either the decedent's spouse, domestic partner, and/or other statutorily specified family members on their own behalf, or the decedent's personal representative on their behalf, for "the death of a person caused by the wrongful act of another." (See California Code of Civil Procedure section 377.60 et seq.). Simply put, "[a] cause of action for wrongful death is a statutory claim that compensates specified heirs of the decedent for losses [they] suffered as a result of a decedent's death." (See San Diego Gas & Electric Co. v. Superior Court (2007) 146 Cal.App.4th 1545, 1550, 53 Cal.Rptr.3d 722, 726, brackets added). "Because a wrongful death action compensates an heir for his or her own independent pecuniary losses, it is one for 'personal injury to the heir.' Thus, in a wrongful death action the 'injury' is not the general loss of the decedent, but the particular loss of the decedent to each individual claimant." (See San Diego Gas & Electric Co., supra, 146 Cal.App.4th 1545, at 1551). "Damages awarded to an heir in a wrongful death action are in the nature of compensation for personal injury to the heir. A plaintiff in a wrongful death action is entitled to recover damages for his own pecuniary loss, which may include (1) the loss of the decedent's financial support, services, training and advice, and (2) the pecuniary value of the decedent's society and companionship - but he may not recover for such things as the grief or sorrow attendant upon the death of a loved one, or for his sad emotions, or for the sentimental value of the loss. The damages recoverable in wrongful death are expressly limited to those not recoverable in a survival action under Code of Civil Procedure section 377.34." (See Quiroz, supra, 140 Cal.App.4th 1256, 1264, internal citations and punctuation omitted).

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