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Wrongful Death and Survival Claims in Texas

By December 9, 2020No Comments

In the most difficult cases, a loved one dies in a car accident that was someone else’s fault.  

After the initial shock and denial have subsided, a measure of anger at the damage that has been caused by the at-fault driver sets in.  

Your life has been turned upside down. You want the person that caused the accident to pay for their mistake. The greatest loss is the loss of companionship and society of the loved one,  but there are also very real financial losses that accompany the death of a loved one.  

How are you going to make ends meet now that you have lost the second income?  How are you going to cope now that your loved one is gone?  Is there anything that can be done?

When our firm is faced with these kinds of heartbreaking cases, we would love to turn back time and make it all go away, but nothing can bring a loved one back.  The only thing that we can do is to help the family receive as much compensation as possible to aid in the hardships and help a family seek closure by holding the guilty party accountable for their actions.  

In this blog, we will discuss the “ins and outs” of the Texas wrongful death laws which are designed to compensate for the devastating loss of a loved one.

What are the Texas Wrongful Death Laws?

Under the common law (the judicially determined laws that govern negligence lawsuits), a person’s right to recover for damages in a personal injury lawsuit ended when the person died.  

In other words, under common law, there is no such thing as a wrongful death lawsuit.  

To deal with that harsh reality, the Texas legislature enacted a statute to allow for recovery of wrongful death damages by certain family members under Chapter 71 of the Texas Civil Practice and Remedies Code.  

The statute provides that a person is liable for damages because of an individual’s death if the injury was caused by one of the following on the part of the person or their agent: 

  • Wrongful act
  • Neglect
  • Carelessness
  • Unskillfulness
  • Default

Who Can Recover for Wrongful Death?

There are only certain family members that can benefit from and bring an action for wrongful death in Texas. These include:

  • The surviving spouse
  • The surviving children 
  • The surviving parents 

We call this class of family members ‘wrongful death beneficiaries.’  

Brothers and sisters of the deceased are not entitled to bring an action for wrongful death, nor is an unmarried significant other of the deceased. 

However, because Texas recognizes common law marriage (“living together as husband and wife” without being legally married), we have been able to successfully claim that the couple we were representing were in fact common law married on more than one occasion.  

The statute also allows the parents of unborn children to recover for the loss of their child in utero as if the individual injured had lived or had been born alive.  

There are exceptions to this rule, however, including:

  • A wrongful death lawsuit may not be maintained against the pregnant mother.  
  • And, under most circumstances, a wrongful death action for the death of an unborn child may not be made in a medical malpractice claim.

What Types of Damages are Recoverable?

There are several types of damages that a wrongful death beneficiary can recover under the wrongful death statute.  Recoverable damages include:

  • Mental anguish: A wrongful death beneficiary may recover damages for their emotional pain, anguish and suffering that results from the death of a family member.
  • Loss of Consortium:  This is the loss of companionship and society occasioned by the wrongful death of a loved one. 
  • Financial losses:  A person can recover for the monetary loss an individual may experience caused by the relative’s wrongful death. These pecuniary losses may include loss of support and other financial expenses like living, travel, medical and funeral expenses.
  • Loss of inheritance: This element of recovery compensates for the loss of inheritance the decedent would have accumulated and left to a wrongful death beneficiary if he or she had lived a normal expected lifetime.

What is a survival claim and how is it different from a wrongful death claim?

A survival claim is also allowed in Texas, and it differs from a wrongful death claim in many important respects.  A survival claim includes the claims of the decedent that accrued before his or her death as a result of the at-fault party’s negligence.  

The survival statute allows the decedent’s estate, heirs, or legal representatives to bring a survival action. It is called a “survival” lawsuit because it allows a personal injury lawsuit to “survive” the death of a person. 

The survival lawsuit is equivalent to a personal injury lawsuit the decedent could have maintained had the person lived. This means that the survival lawsuit can include any of the following caused by the negligence of the defendant: 

  • A claim for medical bills incurred by the decedent
  • Pain and suffering and mental anguish of the decedent
  • Lost wages and loss of earning capacity 

In the survival action, the plaintiff is the legal representative of the estate of the decedent, and therefore any recovered damages would belong to the estate. Your personal injury lawyer will help you determine who should be the legal representative of the decedent’s estate.

Contact Clark Harmonson for help with wrongful death and survival claims

If you have lost someone in any of these tragic incidents, the Harmonson Law Firm extends our deepest condolences. If you need representation, please do not hesitate to contact us.

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