When your client loses a loved one to a case of wrongful death, there are two distinct claims possibilities.
The first and most obvious course of action is to file a claim under Ohio’s wrongful death statute. However, if the decedent suffered any conscious pain or suffering before death, (even if only briefly) or loss or damage to property, a survival claim (sometimes called a survivorship claim)also comes into play.
Lawyers who do not have experience handling wrongful death claims often overlook the survival claim – to the detriment of the decedent’s beneficiaries.
At Cooper Elliott, our experienced Ohio wrongful death trial lawyers know when these survival claims will be useful in a family’s fight for justice. We work with our clients so that they can have some relief after their tragedy, and that those responsible are held accountable.
A Wrongful Death Claim in Ohio
In Ohio, only the representative of the decedent’s estate can bring on a wrongful death claim.
The types of damages available under a wrongful death claim include:
- Loss of support from the decedent’s earning capacity
- Loss of the decedent’s services
- Loss of companionship
- Loss of prospective inheritance
- Mental anguish
- Funeral and burial expenses
The proceeds recovered in a wrongful death claim are allocated through the probate court. The court adjusts the share of each beneficiary in a manner that’s equitable, taking into account the age and condition of the beneficiaries, the injury, and each beneficiary that has suffered as a result of the death.
A Survival Claim in Ohio
A survival claim is not concerned with damages to the next of kin, but focuses on injuries or property loss the decedent suffered during his or her lifetime. And under Ohio law, a survival action isn’t a specific type of claim itself. It’s the legal label used to describe a claim (such as negligence) that the decedent would have made if they had not died from their injuries.
Like a wrongful death claim, the estate’s representative brings a survival claim.
However, the damages from a survival claim are for the decedent’s pain and suffering or property damage, and the decedent’s economic losses (such as lost income and medical expenses).
These damages become part of the estate and are distributed according to the decedent’s will (or by statute if the decedent died without a will). This means that the recipients of wrongful death damages and the recipients of survivorship damages may not all be the same. Also, because the damages become part of the estate, they are distributed the same way as other state assets. Meaning if the estate owes taxes or other debts, the survivorship damages will go to pay those debts before being distributed to the estate beneficiaries.
The Differences Between Ohio Wrongful Death and Survival Claims
There are several important differences between a wrongful death claim and a survival claim.
The following are two examples to help illustrate the contrast between claims:
- A jury may award punitive damages and attorney fees for a survival claim but not for a wrongful death claim.
- Insurance companies may assert subrogation rights against proceeds from a survival claim, but generally not against proceeds from a wrongful death claim.
Understanding the variations and nuances between a wrongful death claim and a survivor claim makes a huge difference in the amount of money the beneficiaries receive.
Each area of the law comes with its own set of complexities. Only years of hard-won experience lend the requisite knowledge necessary to see consistently favorable results for a client.
Contact Cooper Elliott to get started on your case today
If you’ve lost a loved one in an avoidable tragedy, you have our deepest condolences.
One small silver lining is that you may be able to hold those responsible for your loved one’s death accountable by filing a wrongful death lawsuit. Contact our experienced Ohio wrongful death attorneys today to determine whether a survival claim is also possible for your case. Schedule your free consultation today to talk with a member of our legal team.