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Survival Actions vs. Wrongful Death Claims in Colorado

Posted in on February 22, 2021

Survival Actions vs. Wrongful Death Claims in Colorado

When a loved one suddenly dies due to another person’s negligence, there are multiple ways for family members to seek justice on his or her behalf. In the State of Colorado, there are two types of legal actions that may be possible: a survival action and a wrongful death action. A lawsuit may result in financial compensation for surviving family members. However, there are significant differences between the two types of claims. The Elite Litigation Group of attorneys at Bachus & Schanker explain survival actions vs. wrongful death in Colorado.

What Is the Colorado Law for Survival Actions?

The Colorado law for survival actions is C.R.S. 13-20-101 [1]. The law says that a personal injury cause of action survives the death of the victim. The only exceptions where a claim does not survive are libel or slander actions. Some limitations exist on the types of damages that the victim may claim in a survival action, with punitive damages and pain and suffering not being allowed.

What’s the Difference Between a Survival Action and a Wrongful Death Claim in Colorado?

Some of the key differences between a survival action and a wrongful death claim in Colorado are:

  • Only a personal representative may bring a survival action in Colorado. On the other hand, a spouse, child, parent or representative may qualify to bring a wrongful death action.
  • Non-economic damages are only available for wrongful death.
  • The two claims are governed by different laws. C.R.S. 13-20-101 is the law for survival actions, while C.R.S. 13-21-202 [2] is the law for wrongful death.
  • Statutory maximums exist for certain types of damages in a wrongful death claim. Because damages are economic only for a survival action, there are no damage caps.

What Are Damages in a Colorado Survival Action?

Damages in a Colorado survival action include:

  • Funeral expenses
  • Medical bills
  • Lost wages
  • Property damage

A Colorado survival action is for economic losses incurred by the victim between injury and death. Other losses, like grief and sorrow of family members and lost future earnings, are a part of a wrongful death lawsuit. Damages that are not allowed in a Colorado survival action are:

  • Pain and suffering
  • Disfigurement
  • Prospective lost earnings after the date of death
  • Exemplary damages

Who May Bring a Survival Action in the State of Colorado?

Only a personal representative may bring a survival action in the State of Colorado. If the victim didn’t name a representative, the court may appoint one. The individual makes important decisions about the case, including when to accept a settlement. Although the personal representative is the only individual who may bring a survival action in the State of Colorado, family members may qualify to bring a wrongful death claim.

Can There Be Both a Survival Action and a Wrongful Death Action in Colorado?

Yes, there can be both a survival action and a wrongful death action in Colorado. Even though both claims arise from the same events, they are brought by different people for different purposes. A survival action represents the victim’s direct losses. A wrongful death action is for the financial and emotional losses of family members. Both a survival action and a wrongful death action in Colorado can exist concurrently.

Are Survival Actions and Wrongful Death Laws the Same in Every State?

No, survival actions and wrongful death laws are not the same in every state. In fact, there are significant differences in the laws between states. Most survival actions are based on laws passed by elected representatives. The rules for who can bring a claim and the types of damages for each type of case vary from state to state. The body of law that applies to survival and wrongful death actions in each state may have a measurable impact on the final compensation amount.

Case Law for Survival Actions in the State of Colorado

There is a significant body of case law for survival actions in the State of Colorado:

  • Burron v. Edwards, 594 P.2d 1064 (1979) [3]. The question presented was whether the survival statute, C.R.S. 13-20-101, allows for exemplary damages. In this case, the victim started an action before death. They died of unrelated causes. The court said that because the statute does not specifically list exemplary damages in the list of compensation types allowed, the right to claim exemplary damages does not survive the victim’s death under Colorado law.
  • Kling v. Phayer, 130 Colo. 158, 274 P.2d 97 (1954) [4]. Even if the defendant dies while the claim is pending, the defendant’s estate must still answer to the case. It is not a defense that the defendant dies during the course of litigation. Damages may still be settled out of their estate.
  • Hernandez v. United States, 383 F. Supp. 168 (D. Colo. 1974) [5]. A survival action is brought under the victim’s estate. It’s crucial to bring the claim in the appropriate capacity. The victim in the Hernandez case alleged medical negligence resulting in death.
  • Espinoza v. O’Dell, 633 P.2d 455 (Colo. 1981) [6]. The claim survives even if the victim’s death is unrelated to the underlying tort action.
  • Olmstead v. Allstate Ins. Co., 320 F. Supp. 1076 (D. Colo. 1971) [7]. Even though a survival action may be brought only by the personal representative, assignability may still be an option. The court said that if a cause of action survives to the personal representative, then it’s also possible to assign the right to bring the claim.
  • Publix Cab Co. v. Colo. Nat’l Bank, 139 Colo. 205, 338 P.2d 702 (1959) [8]. Medical expenses that the victim suffers prior to death are a part of a survival action. Treatment costs, hospitalization expenses and nursing care may be included. The victim in the case was hit by a taxi cab. They suffered severe injuries that were treated for several months before death. When claiming damages, it is critical to document the amount of economic expense carefully.

Attorneys for Survival Actions in the State of Colorado

If you have lost a loved one in an accident, it may be possible to claim compensation through a survival action, wrongful death claim or through both types of claims. Our attorneys for survival actions in Colorado can help. Also, if you are the personal representative of a victim, our lawyers can represent you in a survival action to recover fair compensation for the estate. Contact us today for a free consultation.

Sources:

[1] C.R.S. 13-20-101 [2] C.R.S. 13-21-202 [3] Burron v. Edwards, 594 P.2d 1064 (1979) [4] Kling v. Phayer, 130 Colo. 158, 274 P.2d 97 (1954) [5] Hernandez v. United States, 383 F. Supp. 168 (D. Colo. 1974) [6] Espinoza v. O’Dell, 633 P.2d 455 (Colo. 1981) [7] Olmstead v. Allstate Ins. Co., 320 F. Supp. 1076 (D. Colo. 1971) [8] Publix Cab Co. v. Colo. Nat’l Bank, 139 Colo. 205, 338 P.2d 702 (1959)

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