How the Two Types of Colorado Personal Injury Claims Differ
In Colorado, when negligent conduct results in death, two kinds of legal claims for damages can be filed: survival actions and wrongful death claims. Although filing a lawsuit may be the last thing that surviving family members are thinking about after losing a loved one, these claims can enable them to obtain compensation for their losses.
Damages in a survival action are awarded on behalf of the deceased person and will go to his estate. Damages in a wrongful death claim compensate certain surviving family members for the loss of their loved one.
A survival action can be brought or continued after death, and it is filed by an individual known as the “personal representative” on behalf of a deceased person. The personal representative is named in the decedent’s will, trust, power of attorney, or living will. If the decedent did not designate a personal representative prior to death, the probate court in charge of the estate will designate someone. Only the personal representative may file a survival action and make choices about its litigation or settlement. No family member of the deceased who has not been designated the personal representative can bring this type of lawsuit.
The damages available in a survival action are limited to losses suffered by the victim from the time he was injured until the time of his death. Such damages commonly include medical bills, lost wages, personal property damage, and funeral expenses.
Certain damages, such as pain and suffering, disfigurement, prospective profit loss, and money that would have been earned after death are not recoverable in a survival action. Because any damages awarded will go to the decedent’s estate, family members are not directly compensated thereby.
Colorado Wrongful Death Claims
A Colorado wrongful death claim can be filed when the negligent behavior of a person or entity causes someone’s death. It can be filed even if a criminal case is pending on the same set of facts.
Certain surviving family members–the spouse, heirs, parents (under certain circumstances), or a designated beneficiary–can bring a wrongful death claim to receive compensation for harm suffered because of a loved one’s death. Damages are available for funeral expenses, loss of companionship, pain and suffering, emotional distress, and loss of income (i.e., if the plaintiff or plaintiffs were financially dependent on the decedent).
In Colorado, wrongful death claims must be filed within two years of the death. Only the victim’s spouse may file such a claim during the first year after the death; after that, both the spouse and the decedent’s children may do so. If the deceased person had no spouse or children, his parents may file the claim.
If you have lost a loved one because of someone’s negligence and have questions about survival actions and wrongful death claims, contact Colorado personal injury lawyer Dan Rosen at (303) 454-8000 or (800) ROSEN-911 to schedule your free initial consultation with experienced counsel.