Initiating a Survival Action
When a survival action is initiated, a personal representative is appointed by the Virginia Beach circuit court civil division probate department. A personal representative is an appointed individual – usually a family member – who has agreed to be the one to bring the survival action. If the defendant had a will, they may have appointed a personal representative known as an executor.
Once a personal representative is appointed, the survival action can begin. After this, the case process becomes very similar to other injury cases. Our Virginia Beach attorneys can walk you through this procedure to help you know what to expect from the survival action process.
Steps to Take for a Successful Survival Action
There are several steps one must take in order to have a successful survival action in Virginia Beach. The plaintiff must be able to establish liability, prove damages, and then reach a settlement or take the case to court. For assistance with the Virginia Beach survival action case process, reach out to our seasoned Virginia accident attorneys.
Establishing Liability
In order for a survival action to be successful, you must be able to establish liability. Establishing liability in a survival action is really no different than in any other kind of personal injury or wrongful death case. The main difference between a survival action and a personal injury case is that the person who was injured has passed away. Otherwise, the damages are still caused by the underlying accident or negligence of the at-fault party.
Proving Damages
After liability is effectively established, the next step is to prove damages. In a survival action case, proving damages is relatively similar to a personal injury case. This includes collecting medical records and bills and proving lost wages and other economic losses. The only difficult aspect of the survival action is that, in order to describe the non-economic damages, the testimony of a family member or friend may be necessary to establish what the decedent went through. The lawyer will typically call for deposition to officially take down the witness’s testimony and their version of how the injury affected the decedent.
Resolving the Claim
Unlike a wrongful death case, a survival action can be resolved by settlement and does not have to go to a court for a resolution. The survival action can be resolved either before or after a suit is filed, depending on what the parties agree on. A private or a court-ordered mediation may also resolve the action depending upon the circumstances. The decision whether to settle a case is always up to the client. In the context of a survival action, the client is the personal representative and they have the right to work with their attorney to decide what is right for them.
Statute of Limitations for Survival Actions
A survival action in Virginia must be filed within two years of the date of the injury and original accident, unlike a wrongful death case where the law allows for two years from the date of the death. Sometimes, it is unclear whether the person died as a direct and proximate result of the accident or died for other reasons. In that situation, it is not clear whether you have a wrongful death case or a survival action. The best course of action in this situation is to file a claim both as a wrongful death case and as a survival action. In this case, the earlier of the two statute of limitations deadlines would be used, meaning two years from the date of the accident.
Discuss the Virginia Beach Survival Action Case Process With an Attorney
It is important for individuals looking to filing a survival action to reach out to an experienced Virginia Beach attorney. The burden is on the attorney to make sure that they are keeping you informed so you feel comfortable with the decisions you are making. Ultimately, it is always your decision whether to settle the case, but it is best if there is a solid rapport between the lawyer and the client. If you are ready to speak with a lawyer about the Virginia Beach survival action case process, call us today. The attorneys at Cooper Hurley Injury Lawyers can help you make the decision that is right for you.
