03
Apr
The Anatomy of Damages Claims in a Wrongful Death: Wrongful Death v. Survivorship
Although these terms may sound like they mean the same thing, in reality they are two distinct areas of the law. A survivorship claim is based on damages that the deceased has suffered to his person or property prior to his death. However, a wrongful death claim is based on the damages suffered by others as a result of the decedent’s death.
A survivorship action is brought under the Survivor’s Act N.J.S.A. 2A:15-3 which preserves any cause of action that the decedent would have been able to bring had he or she survived. This allows a plaintiff to pursue any cause of action that the decedent would have had. On the other hand, a wrongful death action is brought under the Wrongful Death Act N.J.S.A. 2A:31-1 which allows a surviving dependent to bring a claim for financial losses sustained as a result of the death of the decedent. The fundamental purpose is to provide compensation for those who will suffer financially as a result of the wrongful act of another.
It is important to bear in mind that these are two separate causes of action. A person who brings a wrongful death action will not also recover for a survivorship claim unless such a claim is brought. A plaintiff is capable of recovering under both statutes as long as the decedent has suffered some personal or property loss before death, and as a result of the death, the plaintiff has also suffered a financial loss. A common example occurs when the “breadwinner” of the family is killed by the wrongful act of another. However, before dying, the “breadwinner” suffers tremendous pain and suffering for several days. This scenario would allow the spouse to recover the losses sustained for pain and suffering, as well as the lost financial contributions that will result from the tortious conduct of another.
The primary difference between these two causes of action is who must suffer the damages. In a survivorship action, the claim is brought based on what damages the deceased suffered before he or she died. On the other hand, in a wrongful death action, the claim is brought as a result of damages suffered by designated beneficiaries as a result of the decedent’s death.
If the person dies leaving a will, the potential plaintiff who has the authority to bring the cause of action will be the person who is named as the executor or administrator of the estate. Prior to having this authority, the person named in the will must first become appointed executor or administrator through the county surrogate.
However, a problem arises when a person dies intestate (without a will). Because there is no will to determine who has the authority to bring a cause of action, an administrator must be appointed by the court. For a wrongful death case, the surviving family member must be appointed as an Administrator Ad Prosequendum. This simply means that a family member is appointed to prosecute or defend a certain action involving the estate. For a survivorship case, the person bringing the claim must be appointed a general administrator. This person will be appointed to administer the entire estate of the decedent.