Typically, when an individual files either a demand or a complaint about a wrongful death claim, they will attach the demand or complaint about a survivor action. In Florida, it is generally called a loss of consortium, which really means the individual is trying to put a value on something which is invaluable, because it is about the loss of enjoyment, the loss of love, loss of affection, and the loss of financial dependence on the person who has passed away. The procedure is very similar to the wrongful death case, as it is a derivative claim added to the wrongful death demand or complaint and will be handled by your Clearwater Wrongful Death Attorney.

Establishing Liability

Liability is established by proving that someone had a duty to act in a particular way and they breached their duty by acting in a way which was unreasonable for them to act, causing the chain of events which led to the person’s death.

For a survival action claim, they have to prove exactly what the loss associated with the person’s death is to the individuals within the family and those people who survived them. Sometimes that is not just the testimony from the people themselves, but it is also the testimony of experts. That involves economics, present day calculations of the value of future earnings, or sometimes it requires actual reconstructions.

The elements which must be proven in a survivorship action are that the at-fault party was the cause of the death and that the death caused the loss of enjoyment, the loss of financial dependence, and the loss of love and companionship of the deceased party. It is kind of a chain reaction. For example, if the person was negligent in driving and that negligent driving caused the death of the victim, and the victim’s death caused the loss of consortium to the surviving family member. That is how a person calls out the elements to prove the at-fault party caused this loss of consortium.

Survival Action Damages

If liability is effectively established the next step is to prove damages. Damages are proved with witnesses, family members, and friends of the family who can explain what happened in the loss of consortium. A person can prove that with tax returns and employers of the deceased party, so they can explain the financial dependence this family member has who is filing a loss of consortium claim. A person can also prove these damages with testimony from experts who can show the projection of what the deceased person would have earned for his family in the future.

Court or Negotiations

The decision of whether to take survival actions to court or handle them in a private negotiation is usually made between the lawyers, based on their judgment, experience, and training, as well as the wishes of the parties involved, including the people who are potentially the cause of the victim’s loss, as well as their insurance company and lawyers.

Factors which influence the decision on whether or not the attorneys feel that the claim has value include whether or not the family member wants to go forward on the claim and  whether or not they are able to establish liability and prove damages. Some families do not like publicity and sometimes when there is a death case, there is a lot of publicity associated with it. It is a lawyer’s job to attempt to shield the survivors from that publicity. Sometimes one of the ways to do it is to handle things outside of court.

Duration of Suit

They usually take the same amount of time as wrongful death action. If it is settled, usually it is settled as one big claim but with separate amounts for the wrongful death claim and the survivor action, because again, it is a derivative suit. It does not usually survive without a wrongful death claim. Therefore, usually, it takes the same amount of time as a wrongful death claim.

A lot of factors determine the length of survival action suits. First of all, sometimes it is the wishes of the family. This is something that is paramount to the decision-making of the lawyer. However, sometimes proving that a death was caused by someone else’s negligence requires a lot of expert testimony, which requires a lot of evidence gathering and scientific information.

If that is the case, sometimes it is imperative to have a lawyer who has the economic backing to be able to pay for all these costs and is not in a position to want to settle a claim quickly, simply because they are afraid of the costs that may be incurred. Every case is independent and has to be considered based on its own merits, facts, and circumstances. Some cases are faster than others and the attorney should never be in a hurry to settle your claim.

Vital Communication with Attorney

The most important thing a client can do is to keep their attorney posted on anything they can think of which might have an effect on the case. If they remember something, for instance, something they always did with their husband, they need to tell us about it. Or if they find tax returns or their husband’s applications for promotion. Any documents or evidence they can find, they could give us. They just need to keep the attorney up to date, as well as identifying other witnesses who can corroborate the claim on which we are going forward.

A family member should never be afraid to call their lawyers to ask questions because sometimes the questions are very important to the decision-making of a lawyer. And many times, the communications gap between clients and lawyers is one of the reasons why their claims take an ordinate amount of time or that you cannot establish the level of value for the claim.

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