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Filing a Survival Action After a Car Accident in South Carolina

When a loved one is killed in a car crash, there are typically two separate but related lawsuits you can file.  The first is a wrongful death lawsuit, which will help your family recover for damages caused by the decedent’s death.  However, you can also sue for the car accident itself and recover compensation that your loved one would have had a right to sue for if they lived.

These “survival action” lawsuits are filed by the executor or personal representative of the deceased for the benefit of the victim’s estate.  In car accident claims, this can often cover damages for the victim’s medical bills, lost wages, pain and suffering, and other damages they faced before death as well as funeral expenses.  The process of filing and pursuing this lawsuit is similar to that of any other injury lawsuit, but matters are complicated by the fact that the star witness and victim   no longer with us to testify about what happened.

For a free evaluation of your potential case, call (803) 451-4000 to speak with Burriss Ridgeway Injury Lawyers’ South Carolina car accident lawyers.

Survival Actions vs. Wrongful Death Lawsuits for South Carolina Car Accidents

When someone dies in an accident, there are two separate claims you and your Lexington, SC car accident lawyers can file, both of which have some similarities and differences worth understanding.

Wrongful Death Lawsuits

A wrongful death lawsuit is authorized under S.C. Code Ann. § 15-51-10.  These lawsuits are filed by the executor or administrator of the victim’s estate for the benefit of the victim’s spouse and children.  If they died without a spouse or children, then the benefits go to their parents instead.

A wrongful death lawsuit focuses on reimbursing the family for their own losses and the other economic fallout for the victim’s death, such as lost income, lost companionship damages, payments for their grief, and more.

Survival Actions

If someone were hit by a car, and they lived, then they would be entitled to sue the at-fault driver for the crash and the resulting damages.  The fact that they died does not make this lawsuit go away, and the right to file a car accident lawsuit on behalf of the victim passes to the victim’s estate instead.  This is authorized under S.C. Code Ann. § 15-5-90.

The administrator of the estate or the victim’s personal representative is allowed to file this lawsuit or continue the lawsuit if the victim already filed before passing away.  As this lawsuit progresses, the administrator will essentially stand in the shoes of the car accident victim and pursue the lawsuit just as they would have been entitled to, except that the damages get paid to the victim’s estate instead.

In this case, you can sue for things like vehicle damage, hospital bills, lost wages, and other damages that the victim faced before death.  This can also include pain and suffering damages for the physical pain and mental anguish that the victim suffered during the accident, during medical treatment, and during recovery before death.

Differences and Similarities Between Wrongful Death and Survival Actions

Many people linger for days or weeks after a serious car accident, and they can face substantial damages that would not be paid in a wrongful death lawsuit since that only covers damages for the death.  Survival actions can help families get these damages compensated and seek justice for what happened to the victim, on the victim’s behalf.

Both lawsuits can recover compensation for funeral expenses, but you can only claim them once, not in both lawsuits.  Both cases are also filed by the administrator of the estate, meaning that they can handle both cases in the same filing.

Damages are paid a bit differently for both lawsuits.  Under a survival action, damages are paid into the victim’s estate.  This means that they get distributed along with any other assets and property the victim owned at death.  That distribution follows the victim’s will, unless they died without one.  In that case, it follows the South Carolina intestacy statute.  This favors the spouse and children in the distribution and only gives a share to parents and other heirs if there are no closer heirs.  A wrongful death lawsuit distributes damages according to intestate succession rules even if there is a will, but damages are paid only to the spouse, children, or parents.

The Process of Filing a Survival Action for a Deadly Car Accident in South Carolina

As mentioned, the survival action is usually filed alongside the wrongful death lawsuit by the administrator of the victim’s estate.  This party will file the lawsuit by submitting the proper paperwork and a complaint with the court that has jurisdiction over the place where the deadly car accident occurred.

If you were named administrator of the estate for a deceased loved one, then our attorneys can help you file and guide you throughout the entire filing process.  If there was no administrator named or the victim had no will when they died, we can file to have you or another close family named as the administrator and represent them in the lawsuit.

After filing, courts hear preliminary motions.  At this time, the defendant will usually seek to have the case thrown out on a legal basis.  Our Columbia car accident attorneys will protect your claim with our own filings and arguments to get the case to progress forward.

Once the case moves forward, the discovery stage will begin.  At this stage, both parties exchange evidence and subpoena witnesses for depositions.  Since the victim is deceased and cannot testify, there may be evidence we can collect to fill in the holes in the story of what happened, such as eyewitness testimony or camera footage of the crash.  Police reports will be helpful in allowing us to track down witnesses and find potential evidence to use.  Statements your loved one made before death can also be helpful.

Court cases often settle after this stage, but if the defendant and their insurance company will not settle at a reasonable value, we can progress the case to trial and fight your case before a judge and jury.

Call Our South Carolina Deadly Car Accident Lawyers Today

If you lost a loved one in a car accident, call the car accident attorneys at Burriss Ridgeway Injury Lawyers today at (803) 451-4000 for a free case evaluation.