Many people are surprised to discover the Pennsylvania law recognizes not one, but two types of actions that can be brought following the death of a family member or loved one due to negligence or an intentional tort.
Pennsylvania Wrongful Death and Survival Actions are respectively codified under 42 Pa.C.S.§8301 and 42 Pa.C.S.§8302. These separate causes of actions often seem ambiguous to grieving family members and the nuances between them can seem convoluted.
While these two causes of action share many similarities it is crucial to note that a wrongful death action has been deemed to be “separate and distinct” from a survival action in the case of Tulewicz v. Southeastern Pennsylvania Transportation Authority, 606 A.2d 427, 431 (Pa. 1992).
The main difference between the two types of claims is who can make the claim and what types of damages they can seek.
Wrongful Death Actions
The Pennsylvania Wrongful Death Statute was first approved on November 15, 1972, and has been amended several times over the last forty years. The Pennsylvania Wrongful Death statute maintains:
An action may be brought, under procedures prescribed by general rules, to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another if no recovery for the same damages claimed in the wrongful death action was obtained by the injured individual during his lifetime and any prior actions for the same injuries are consolidated with the wrongful death claim so as to avoid a duplicate recovery.
42 Pa. C.S. § 8301(a) By way of further explanation and as a simplistic clarification of this statute, a wrongful death claim is one that seeks to “recover damages (usually in the form of monetary compensation) for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another.
There are specific rules about who is allowed to recover damages for a wrongful death claim in Pennsylvania.
Survival Actions
The Pennsylvania Constitution provides that in the case of death from personal injury, the right of action survives. The Pennsylvania Constitution also provides that except in Workers’ Compensation cases, the General Assembly may not limit the amount to be recovered for injuries resulting in death. See Pa. Const. Art. III, § 18. Pennsylvania survival statute states in its entirety:
All causes of action or proceedings, real or personal, shall survive the death of the plaintiff or of the defendant, or the death of one or more joint plaintiffs or defendants.
42 Pa. Cons. Stat. Ann. § 8302. To immediately distinguish this cause of action from that of wrongful death, this cause of action is grounded in the injury to the other person, not in the fact that he or she may have died. Therefore, a survival action continues in the decedent’s personal representative. This cause of action provides a means for an aggrieved personal representative to assert causes of action that the decedent (the party who has died) would have had been entitled to had he or she survived the incident or act. The damages stem from the rights of action possessed by the decedent at the time of death. See Frey v. Pennsylvania Elec. Co., 607 A.2d 796, 798 (Pa. Super. Ct. 1992), appeal denied, 614 A.2d 1142 (Pa. Super. Ct. 1992).
Who is Eligible to Bring a Wrongful Death or Survival Action?
As stated, the purpose of the Pennsylvania Wrongful Death Act is “to compensate certain enumerated relatives of the decedent for pecuniary loss sustained because they had been deprived of that portion of the decedent’s earnings which they would have received if the decedent had not died prematurely.” Bortner v. Gladfelter, 302 Pa. Super. 492, 497, 448 A.2d 1386, 1389 (1981) citing Pezzulli v. D’Ambrosia, 344 Pa. 643, 648-649, 26 A.2d 659, 661 (1942); Manning v. Capelli, 270 Pa. Super. 207, 211, 411 A.2d 252, 254 (1979). The statutory language specifically outlines those enumerated family members who may be entitled to damages such that the statute states the right of the action created by this section shall exist only for the benefit of the spouse, children or parents of the deceased, whether or not residents” of the Commonwealth of Pennsylvania. 42 Pa.C.S. § 8301(b).
In Pennsylvania, a survival action is brought by the personal representative of the decedent’s estate in order to recover the loss to the decedent’s estate resulting from the defendant’s tort or crime. In a survival action, the personal representative, administrator, administratrix, executor, or executrix of the decedent’s estate may bring the survival action arising from an accidental or wrongful death.
What Damages Are Available in Survival vs. Wrongful Death Actions?
A lawsuit which pleads a cause of action under both wrongful death and the survival act can result in a settlement or jury award that compensates you for your economic losses and the pain and suffering experienced by your loved one or family member. However, it is essential to note that, “the actions for damages are cumulative and are not to overlap or result in duplication of damages.” Kiser v. Schulte 648 A.2d 1 (Pa. 1994).
The damages awarded in a survival action include the decedent’s pain and suffering, the loss of gross earning power from the date of injury until death minus personal maintenance expenses, from the time of death through the decedent’s estimated lifespan. See Kiser v. Schulte, 648 A.2d 1, 4 (Pa. 1994).
However, it is well-settled law in Pennsylvania that damages for pain and suffering are not always available depending on the factual determinations made. In order for there to be damages for pain and suffering in a survival action, the plaintiff must consciously feel pain and suffer from it. When the decedent plaintiff is killed instantly or is unconscious the entire time following accident and injury, there can be no recovery for pain and suffering. Nye v. Comm., Dept. of Transp. 331 Pa. Super. 209, 213 (1984).
Generally, a survival action is brought by the administrator of the decedent’s estate to recover for losses to the estate resulting from a defendant’s tort. The damages in a survival action are measured by the pecuniary loss to the decedent. See Miller v. the United States Fidelity & Guaranty Co., 450 A.2d 91, 95 (Pa. Super. Ct. 1982), aff’d, 468 A.2d 1097 (Pa. 1983). Economic damages, on the other hand, are measured by the loss of earning power minus personal maintenance expenses from the time of death through a decedent’s estimated working lifespan. While it may seem that there is a considerable amount of math involved, neither the statute nor the case law requires that there be a mathematical exactness; merely that the person who is bringing the claim provide evidence of a reasonably fair basis for calculating damages. See Smail v. Flock, 180 A.2d 59, 61 (Pa. 1962).
The damages that a personal representative can recover on behalf of their departed loved one include medical bills, the decedent’s conscious pain and suffering, and the decedent’s probable lifetime earnings, less his or her probable lifetime costs of maintenance. See Skoda v. West Penn Power Co., 191 A.2d 822, 829 (Pa. 1963). In a survival action the case of Krause v. B & O R.R. provides that when the survival claim is based on the estate’s loss of the decedent’s earnings during their normal life expectancy, these earnings must be reduced by a number of probable money contributions awarded to any wrongful death beneficiaries. This priority in how funds are to be allocated is reinforced by the natural preference for compensation, recognizing that wrongful death claims are more favored over survival claims. See Generally Krause v. B & O R.R., Pa. D. & C. 3d 458, 471 (C.P. Ct. Somerset Cnty. December 7, 1983).
Some notable differences in recoverable damages between a wrongful death action and a survival action prohibit claimants from recovering the costs of a funeral. See Skoda v. West Penn Power Co., 191 A.2d 822, 829 (Pa. 1963). Additionally, there can be no recovery for pain and suffering when the decedent is unconscious for the entire period of time of the injury and the time of death according to the case of Nye v. Commonwealth, 480 A.2d 318, 321 (Pa. Super. Ct. 1984).
What is the Statute of Limitations for a Survival Action?
As with all causes of action in Pennsylvania, there is a finite amount of time in which an aggrieved party may file their claim. A survival action must be filed within two years of the date of injury. 42 Pa.C.S. § 5524(2). Accordingly, while a wrongful death action accrues on the date of death, it is important to realize that a survival action may accrue prior to the date of death and thus on a different date than the wrongful death action.
The Statute of Limitations on a Wrongful Death Claim
Wrongful death claims usually follow the same two year time window – however, this begings at the time of death, not of the injury that causes the death. There are exceptions to this rule, so you should speak to a Philadelphia wrongful death lawyer of The Reiff Law Firm if you have questions regarding your wrongful death case.
To schedule a free consultation for your injury case, call us at (215) 709-6940, or contact us online.
