Damages for Wrongful Death and Survival Claims

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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