Choosing a Qualified Houston Survival Claim Lawyer
Texas Survival Claim Lawyer RJ Alexander Law PLLC
When a family member dies as a result of another’s negligence, people are often confused by what cause of action they may have. While the nomenclature is confusing, the concept is not. Generally speaking, two cases arise: a wrongful death action and a survival action.
The Texas Survival Statute abolished the common law rule that cause of action for a personal injury abates when the inured person dies. Under the Survival Statute, an heir or representative of an estate is allowed to pursue the decedent’s personal injury claim. The Survival Statute does not create a new cause of action; it merely permits the decedent’s cause of action to survive her death.
A survival action, simply stated is allows a the deceased’s Estate to assert a claim for the decedent’s injuries before he/she died. In a survival action, the Estate to assert a claim for the decedent’s injuries before he/she died. In a survival action, the Estate is allowed to recover for the decedent’s (as opposed to the living family members) pain and suffering from the time of the injury until the death, as well as the economic losses suffered by the decedent. Essentially, the law allows the Estate to “take over” the personal-injury claim that the decedent had until she died.
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There are (at least) two important differences between a Survival Action and a Wrongful Death claim, First, the damages recovered in a Survival Action go to the Estate, not directly to the family members. The damages are then divided among the family members as set out in the decedent’s will or, if there is no will, pursuant to state law. Second, ordinarily the family members may not recover for their personal losses if only a Survival action is asserted.
The elements of a survival action are the following:
1. The plaintiff is the legal representative of the decedent’s estate.
2. The decedent had a cause of action for personal injury to her health, reputation, or person before she died.
3. The decedent would have been entitled to bring an action for the injury if she has lived.
4. The defendant’s wrongful act caused the decedent’s injury.