For survival actions in Colorado Springs, family members may bring a claim on behalf of a deceased individual for the losses they sustained in their fatal accident. This means that an accident that causes someone to die may lead to a viable survival action but is not triggered by the person’s death. In a survival action, the estate of the deceased is the beneficiary in which they are seeking to recover actual losses suffered prior to the person’s death.
Alternatively, family members may file a wrongful death action against a wrongdoer for the losses they suffered as a result of their loved one. These damages may include the current and future loss of income, reimbursement of medical expenses from the date of injury to their death, funeral costs, loss of companionship to the family, and pain and suffering of the decedent from the time of injury to their death.
In a matter such as this, the potential claimants should contact an experienced lawyer because there could be different people making claims under the survival action and the wrongful death case.
When a person dies without a will, it is called dying intestate. The state’s intestacy laws determine who may represent the estate in a case. A family member may petition the court to be appointed Administrator of the Estate. In so doing, all immediate family members are listed along with their addresses and contact numbers. Then, a court holds a brief hearing to appoint someone as Personal Representative of the Estate. The Personal Representative serves at the discretion of the court and is required to prepare certain documents periodically to file.
In Colorado Springs, a person cannot bring noneconomic or punitive damage claims against someone in a survival action. Instead, only the lost earnings and expenses that were incurred or sustained before the injured person’s death can be recovered, with one notable exception being funeral expenses.
Claimants also may be eligible to recover loss of time before death as well as loss of pre-death earning capacity. In general, a claimant cannot recover any damages after someone’s death.
However, one exception is if the person who sustained injuries dies after a jury verdict, but before a case enters judgment, they may be able recover non-economic and punitive damages because they already received an award by the jury. Punitive damage claims cannot be recovered from an estate because these are designed to punish. If the wrongdoer died in the accident, the law does not punish their heirs.
The evidence which could be gathered to calculate damages for a survival claim is the same as in any other personal injury case, such as medical bills and records. These are needed to prove the expenses were reasonable and related to the accident. Lost wages and funeral expenses need to be proven through documentation the same as a traditional civil claim.
Under state law and the Probate Code, all claims against a decedent’s estate would be a survival action. All claims that arose against the deceased before their death are barred unless they are presented to the Estate within four months after the date of the first publication of the Notice to Creditors, or not filed within a year after that person’s death.
However, if the decedent had liability insurance, this may be an exception to the time limitations. If a person brings an action and then dies while the action is pending, the court may advance the case. There are other critical time limitations, so claimants to an estate should consult with a lawyer for further information.
Other rules may apply when a claim arises before a person dies, but no action was filed. For instance, a claimant may need to file this action in the court where the personal representative is appointed, such as the Probate Court. If filed in other counties, it may be the District Court. Once the survival action commences, it is going to look similar to a personal injury claim, and the case needs supporting evidence to prove their damages.
When a family member or loved one dies, it is always an extremely emotional and devastating time. Having an experienced lawyer who could tell the family what they need to do, what needs to be done, and who could handle those things for them is invaluable. During this time, family members may not be able to think clearly through the process.
An experienced attorney could help them navigate around the pitfalls and the intricacies of the interplay between survival actions in Colorado Springs, wrongful death actions, the various time limitations, and probate court requirements. If you need legal assistance after the death of your family member, call our caring and compassionate team today.