Wrongful Death

1. What is "wrongful death?"

The essence behind a wrongful death lawsuit is that the wrongful death, in addition to injuring the person who died, also injured people who depended upon the deceased for financial or emotional support. Pennsylvania provides that a wrongful death action may be brought to cover damages for the death of an individual "caused by the wrongful act or neglect or unlawful violence or negligence of another."

2. How did wrongful death actions come to pass?

At common law (rules applicable to the government which do not rest for their authority upon any express or positive statute but upon statements of principles found in the decisions of the courts), no action could be instituted to recover damages for the death of another. The right to bring such actions was conferred by a statute in 1851 which provided that an action for death caused by unlawful violence could be instituted if the decedent had not filed an action to recover damages while living. That statute served as a precursor to Pennsylvania's modern Wrongful Death Act.

3. Who can sue for wrongful death?

In Pennsylvania, the wrongful death action exists only for the benefit of the spouse, children or parents of the deceased, whether or not those individuals are citizens or residents of the Commonwealth or live elsewhere. Thus, brothers, sisters, nieces, nephews, etc. of a decedent have no cause of action under Pennsylvania's Wrongful Death Act.

4. What kind of damages can be recovered?

The damages recoverable in a wrongful death action include, but are not limited to, the present value of the services that the deceased would have rendered to the family had he or she survived, as well as the damages for reasonable hospital, nursing, medical and funeral expenses as well as expenses of administration necessitated by reason of injuries causing death. Also, the rights of survivors in wrongful death actions are affixed at the time of death. The remarriage of a spouse may not be considered in the assessment of damages.

5. How are future damages calculated?

Many states have adopted life expectancy tables for use in calculating future losses. It is common to take the decedent's earnings at the time of his or her death and calculate the remaining years until retirement or expected death to figure future loss of earnings. Life expectancy tables are also used to calculate loss of benefits, such as the amount of pension benefits that would have been available had the victim lived.

6. How are damages distributed in a wrongful death action?

Pennsylvania law provides that the damages recovered are distributed to the beneficiaries in this proportion: They would take the personal estate of the decedent in the case of intestacy and without liability to creditors of the deceased person.

7. What is the statute of limitations for filing a wrongful death claim?

In Pennsylvania, wrongful death actions must be commenced with two years of death.

8. What is the difference between "wrongful death" and a "survival action?"

As previously stated, wrongful death is a cause of action meant to compensate individuals who have lost a spouse, child or parent. A survival action, unlike a wrongful death action, is not a new cause of action but merely a continuation of the right of action which accrued to the deceased during his or her lifetime.

The major differences are as follows:

A survival action must be filed by the personal representative of the decedent. A wrongful death action is usually initiated by the personal representative but may in certain situations be filed by a beneficiary.

A survival action is for the benefit of the decedent's estate. A wrongful death action benefits family members named in the statute who can prove a pecuniary loss.

In a survival action, the amount recovered becomes a part of the decedent's estate subject to the claims of creditors. By statute, the beneficiaries of a wrongful death action recover personally, free from the claims of the decedent's creditors.

Sums recovered in a survival action are subject to state inheritance tax. Sums recovered in wrongful death actions are not subject to state inheritance tax.

9. What damages are recoverable in a survival action?

The damages recoverable in a survival action are pain and suffering (unless, of course, death is instantaneous), medical care, and loss of earning power from the date of injury to death and loss of earning power, less personal maintenance, from the date of death through the estimated working life of the decedent.