Arizona law provides two actions for death caused by the fault of another – wrongful death and survival actions. Each provides a qualified group of individuals the ability to file a lawsuit against the person responsible. Additionally, both wrongful death and survival actions are statutory causes of action, meaning that they are both strictly governed by state law. One or both actions may be pursued. Despite the similarities, there are two important differences between wrongful death actions and survival actions: (1) who is allowed to file a lawsuit (parties); and (2) the damages that may be recovered.
This blog briefly outlines the differences between wrongful death actions and survival actions in Arizona. Knowledge of these distinctions may help determine the kind of legal action and damages that you may pursue. However, this blog does not, and is not intended to, substitute for competent legal advice from an experienced attorney about the facts of your case. Every case is unique, and should be treated that way.
In a wrongful death action, a specific class of family members (statutory beneficiaries) may file a lawsuit for the wrongful death of their family member. Statutory beneficiaries include the surviving spouse, children, parents or guardians, or the personal representative on their behalf. If there are no surviving statutory beneficiaries, the personal representative on behalf of the estate may file suit. Ariz. Rev. Stat. Ann. § 12-612.
These statutory beneficiaries are the only ones who can collect damages from a wrongful death suit. This can yield unfair results. Arizona law does not allow a life partner to bring a claim for the wrongful death of their partner, even if the unmarried couple cohabitated for many years and had children together. Solomon v. Harman, 107 Ariz. 426, 428, 489 P.2d 236, 238 (1971); In re Milliman’s Estate, 101 Ariz. 54, 58, 415 P.2d 877, 881 (1966) (mother of the decedent’s child could not collect damages). Because Arizona does not recognize common law marriage, partners in these arrangements may be left out in the cold if their partner is killed by another’s misconduct. If you and your significant other have children and depend upon each other for financial support, you may want to consider getting a legal marriage. That way, if you’re killed, your partner will be protected. An exception may occur if you have lived in a state which permits common law marriages. Arizona will recognize common law marriages that occurred in a state that recognizes them.
A survival action, on the other hand, is only brought to benefit the deceased’s estate, and is intended to prevent the defendant who caused the injury from escaping liability after the victim’s death. The estate includes all possessions, property, and assets belonging to the deceased. A survival action gives the deceased’s estate the ability to recover damages for the harm committed against the deceased. The survival action essentially preserves for the deceased’s estate the claim that the deceased would have had against the defendant had they survived. Ariz. Rev. Stat. Ann. § 14-3110. The estate is then given to the next of kin, or personal representative of the estate.
In a wrongful death action, the statutory beneficiaries are compensated for their harms and losses. The statutory beneficiaries may also receive economic damages for funeral expenses and reasonable medical expenses. The statutory beneficiaries may be compensated for the income and services that have already been lost because of the death, and that are likely to be lost in the future. Damages may also include emotional damages for loss of care, companionship, and guidance, as well as for the pain, grief, sorrow, anguish, stress, shock, and mental suffering that the statutory beneficiaries have already experienced, and are likely to experience in the future, because of the death. These damages are those suffered by the beneficiaries and not the deceased.
Arizona law on damages for pain and suffering is based on the concept that the decedent is the one who suffers the pain. It is personal to that individual, and only the decedent can recover for it. The pain and suffering for the decedent die with them. Pre-death pain and suffering cannot be recovered by the statutory beneficiaries as damages. See Walsh v. Advanced Cardiac Specialists Chartered, 229 Ariz. 193, 196, 273 P.3d 645, 648 (2012) While the survivors cannot collect damages for the decedent’s pre-death suffering, they may still recover for their own suffering – the shock of the death and the grief that they experience due to the untimely death.
In a survival action, damages are measured by those that would have been collectable by the decedent had they not died. Arizona law allows for recovery of funeral expenses, lost wages the deceased would have earned from the time of injury until their death – minus consumption or the amount which the decedent would have used – and medical expenses that were paid by the deceased. Ariz. Rev. Stat. Ann. § 12-612. Typically, the decedent’s estate may not recover damages for pain and suffering experienced by the deceased before their death; however, in federal civil rights cases, pre-death pain and suffering damages may be awarded under 42 U.S.C. §1983. Gotbaum v. City of Phoenix, 617 F. Supp. 2d 878 (D. Ariz. 2008). The Gotbaum court reasoned that because “Congress sought to provide an effective remedy for unconstitutional killings . . . application of the Arizona survival statute and its elimination of pain and suffering damages in cases where death is alleged would be contrary to the purposes of section 1983.” Id. at 885.
If you have lost someone you love due to the fault of others, and you’d like to talk to us, give us a call at (602) 400-4400.