Recent Blog Posts in October 2009 |
| October 09, 2009 |
| Damages for Wrongful Death and Survival Claims |
| Posted By L. Anthony Bompiani, Esquire |
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When an individual dies as a result of the conduct of another, the
estate and/or beneficiaries can file two actions -- Wrongful Death and
Survival. These actions have some significant differences. For example,
a survival action is subject to the Pennsylvania inheritance tax but a
wrongful death claim is not. Also, the statute of limitations for a
survival action begins to run, as a general rule, from the date of the
incident while the statute for the wrongful death claim runs from the
date of death. Of particular importance here is the distinction between
the proof of damages for wrongful death versus survival actions.
The appellate courts in Pennsylvania have had occasion to discuss the
elements of damage in death cases on numerous occasions. Specifically,
the Superior Court has outlined the following elements involved in a
wrongful death action:
1. The purpose of the Wrongful Death
Statute is to compensate "the decedent's survivors for the pecuniary
losses they have sustained as a result of the decedent's death...This
includes the value of the services the victim would have rendered to
his family if he had lived. A wrongful death action does not compensate
the decedent; it compensates the survivors."
2. Under the
wrongful death act the widow or family is entitled, in addition to
costs, to compensation for the loss of the contributions decedent would
have made for such items as shelter, food, clothing, medical care,
education, entertainment, gifts and recreation.
Costs incurred by the death of the decedent are also recoverable under the Wrongful Death Statute.
It is clear that wrongful death beneficiaries are not entitled to
recover non-economic losses associated with the decedent's death. There
is no support in the law "for the proposition that a parent may recover
for the non-economic loss of guidance, support, comfort, maintenance,
companionship and society of a child under the Wrongful Death Act," but
damages do include "the present value of services the deceased would
have rendered to the family, plus funeral and medical expenses."
In contrast to a wrongful death action, a survival claim belongs
exclusively to the decedent and must be brought by the court-appointed
representative. Specifically, the Superior Court has held:
1. A survival action is brought by the administrator of the decedent's
estate to recover the loss to the estate resulting from the tort. The
measure of damages under such an action includes the decedent's pain
and suffering, the loss of gross earning power from the date of injury
until death, and the loss of earning power, reduced to reflect personal
maintenance expenses, from the time of death through the decedent's
projected working life.
As noted above, these losses are
considered elements of the estate and, consequently, unless there is an
exclusion in the intestacy laws, taxes will be due on the recovery of
survival act damages.
The issue of personal maintenance expenses has been addressed by the Superior Court. Specifically, the Court has held:
1. In a survival action, the cause of action arises out of the injury,
not out of the death. The estate is substituted for the decedent, and
its recovery is based upon the rights of action which were possessed by
the decedent at his death. The estate may recover for the loss of
decedent's past and future earning power, for the decedent's pain and
suffering prior to death, and for the cost of medical services,
nursing, and hospital care provided to decedent. The estate may not,
however, recover funeral expenses, since, obviously, the decedent could
not have brought an action for these expenses at the time of his death.
2. In addition, in order to avoid duplication of damages for loss of
future earning power, survival action damages must be diminished by any
amounts recoverable under the Wrongful Death Act.
Should
you have any further questions regarding the calculation of damages in
wrongful death and survival actions in Pennsylvania, contact L. Anthony Bompiani, Esquire at (724) 925-9600.
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| October 02, 2009 |
| Limited Tort vs. Full Tort |
| Posted By L. Anthony Bompiani, Esquire |
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Limited Tort Protection, Limited Rights for Drivers
Article provided by Mikus Law Associates, P.C.
In
Pennsylvania, drivers may have a limited tort auto insurance policy or
a full tort auto insurance policy. It is not uncommon for policyholders
to be unsure of which type of policy they have, even though they have
to sign a waiver to decline full tort coverage. WE STRONGLY RECOMMEND
PURCHASING FULL TORT COVERAGE.
In
a limited tort policy, your rights to bring a claim for compensation
for your losses following a car accident may be limited to monetary
losses. If you have limited tort coverage you usually cannot bring a
claim for compensation for your non-monetary losses - such as pain and
suffering - unless the injury is "serious." Pennsylvania law defines a
serious injury as one that "results in death, serious impairment of a
bodily function or permanent serious disfigurement."
The
tort selection (full versus limited) that you make applies to you and
to those members of your family that live with you. When you select
limited tort coverage you are not just restricting your rights, you are
restricting the rights of your spouse and children - even if they do
not have driver's licenses.
Recoverable
monetary losses may include medical bills, lost wages and repair costs
to your vehicle. There are some exceptions to the prohibition from
recovering for pain and suffering if you have limited tort coverage.
One of the most commonly applicable exceptions is if the accident was
caused by an intoxicated driver. Even if you have limited tort coverage
you should still have your potential claim reviewed by a personal injury attorney.
The
law does not define what constitutes a serious impairment of a bodily
function or a permanent serious disfigurement, which can make it
difficult to establish that you have suffered a "serious" injury and,
therefore, difficult to recover compensation for pain and suffering
even if you think your injury is serious.
A
full tort policy does not have these limitations. If you have full tort
coverage you have the right to bring a claim for compensation for all
of your losses - including recovery for pain and suffering with no
artificially imposed limit.
Do Not Waive Your Rights to Full Tort Protection
Since
a limited tort policy impairs your ability to recover compensation for
all of your injuries, why does anyone choose this type of policy?
People usually choose limited tort coverage because they do not fully
understand the scope of the restriction on their rights and because
doing so will reduce their insurance premiums by a marginal amount. As
discussed below, the "savings" from choosing the limited tort option
can usually be achieved by increasing the deductibles on collision
and/or comprehensive coverage on your car. WE BELIEVE THAT, IF PREMIUM
DOLLARS ARE A SUBSTANTIAL ISSUE FOR YOU, YOU AND YOUR FAMILY ARE BETTER
OFF IF THOSE DOLLARS ARE SPENT PROTECTING YOU AND YOUR LOVED ONES THAN
IF THEY ARE SPENT REDUCING THE DEDUCTIBLE ON COVERAGE FOR YOUR CAR.
You
may be inclined to choose the limited tort policy because you have
never been in an accident and don't believe you will ever need to
recover non-monetary losses. All it takes is one car accident, however,
to negate the relatively minor savings of a limited tort policy. Those
who have never been in an accident before may not appreciate that even
minor injuries can result in serious pain and suffering.
Saving on Car Insurance with Full Tort Protection
There
are other ways to save on your auto insurance premiums without
sacrificing your legal rights and your family's safety. These include:
Choosing
a higher deductible. The deductible is the amount you pay before your
insurance benefits kick-in. Raising your deductible to a higher amount
can reduce the overall cost of your insurance. Just be sure to choose
an amount you still can comfortably pay.
Combine
insurance coverage. Insurance companies offer a discount if you have
more than one policy with them. For example, you could bundle your
homeowner's and auto policies all with the same insurer. You also can
insure more than one car with the same company to get a discount on
your rates.
Seek
out discounts. Insurance companies give a variety of discounts for
things such as having a clean driving record, staying with the same
insurance company and having certain safety features on your car, like
anti-lock brakes, anti-theft features and daytime running lamps.
Discounts may be given for belonging to certain organizations (like
Triple A), having a low-risk occupation and taking a defensive driving
course. Insurers do not always advertise these discounts, so be sure to
ask.
Conclusion
Selecting
limited tort coverage will save a few dollars on insurance premiums at
the expense of a severe restriction of your rights and the rights of
you loved ones. Ask your insurance adjuster about other ways to save
money on your insurance. As a public service, for no charge and with no
obligation, our office is willing to review your insurance coverages
with you to make sure that you understand the coverages you have and
the options that are available to you.
Attorney L. Anthony Bompiani handles a variety of auto accident claims. Contact him at (724) 925-9600 for help.
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