Can Family Members File a “Survival Action” Following the Death of a Loved One in a Fatal Maryland Roadway Collision?

No, but don’t get this type of legal action confused with a wrongful death claim. To clarify, while a victim’s family can file a wrongful death lawsuit following a fatal car or truck accident, the so-called “Survival Action” is brought by a victim’s estate to recover certain damages from any responsible party(s). As with most auto accident cases involving driver negligence, a survival claim must also be filed within three years of the date of the fatal traffic accident, with some exception.

Although the terminology can be confusing to many people, it is important to point out that the laws relating survival claims have been created as a remedy for a deceased person’s estate to sue following the victim’s death; in other words, survival claims are primarily meant to recover damages for the person who died. However, in situations where the victim was killed “instantaneously,” the bulk of damages will likely NOT be recoverable. In such instances, the damages that an estate is allowed to claim include the following:

• Funeral expenses capped by Maryland statute
• The deceased’s medical expenses incurred between the time the victim received his or her injury(s) and the time of death
• Lost wages between the injury and time of death
• Property damage
• Non-economic damages (pain and suffering, mental anguish, etc.) between the injury and time of death
• Punitive damages, where specified (but generally not permitted in Maryland traffic accident cases)

When it comes to non-economic damages related to survival claims, there are monetary limits prescribed by law. Here in Maryland, caps on damage awards vary based on the type of case; medical malpractice versus auto accident, etc. Similarly, wrongful death claims have their own damage caps, which can also vary depending on whether there are surviving family members. But unlike a typical wrongful death case, all damages in a survivor action go directly to the victim’s estate, which may then be distributed per the deceased’s will (if one exists) by the estate’s personal representative.

At Lebowitz & Mzhen, LLC, we understand that grief can often affect the decision-making process. If your loved one has died through the negligent actions of another party(s), whether in a Maryland car accident; because of a medical error or other suspected malpractice; or another kind of personal injury accident, we urge you to contact a qualified legal expert to learn more about your rights. Our attorneys are ready, willing and able to help. Call us today to arrange for a free, no-obligation initial consultation.