Does a personal injury claim survive the death of the parties? Yes… Survival actions to the rescue!


As personal injury lawyers, we are sometimes faced with the question of what happens to a claim if the injured party dies before the case is resolved. A similar question is what happens if the person causing the injury dies before the case is resolved.

Historically, the death of a party was a potential impediment to pursuing a claim, resulting in situations where an aggrieved party was unable to recover their claim. The injustice of this result was recognized and the law evolved so that a personal injury claim survives the death of the injured person or the negligent person causing the injury.

Virginia Code § 8.01-25 (1950) states that “Any cause of action, whether legal or equitable, that is known in the Commonwealth of Virginia, shall survive either the death of the person against whom the cause of action is or may be asserted, or the death of the person favor of which the cause of action the action existed, or the death of these two persons.

Although the death of a party no longer extinguishes the claim, it does create procedural and practical issues that the personal injury attorney must manage on behalf of the client. First, since a lawsuit cannot be brought or maintained by or against a deceased person, a person must be appointed by the court to serve as the personal representative of the deceased person. Usually, a close family member agrees to take on this role. Once the appointment has been made, the file can be filed by the personal representative on behalf of the estate of the deceased person. If the plaintiff dies while the case is pending in court, a personal representative must be appointed who is then replaced as plaintiff and the case continues on behalf of the deceased person’s estate.

The same procedure is required if the person against whom the claim is made (the defendant) dies before the complaint is filed or after the complaint is filed. Accomplishing the appointment of a personal representative for a defendant in the pre-trial context is a bit tricky as the plaintiff’s attorney must find someone willing to serve. If a lawsuit is pending when the defendant dies, the defense attorney usually arranges for a close family member of the deceased to act in that capacity.

A practical challenge arises for the plaintiff’s attorney regarding damages when a case involving a deceased person does not settle and goes to trial. That is, there is a real risk that the verdict will be less and not fully and fairly compensate the injured party. This risk manifests itself in two ways. First, if the injured party is deceased, the jury is likely to consider the purpose or benefit of awarding money to a deceased person’s estate and whether it makes sense to do so. Conversely, suppose the deceased person caused the initial harm. In this case, the jury is likely to feel sympathy for him or question the fairness of holding him liable when he is not present to defend himself and, therefore, return a lower verdict.

The experienced personal injury lawyer knows how to address the issue of the death of a party affecting the jury’s decision on damages by focusing on it and discussing it during jury selection, in the opening statement, in closing argument and by asking instructions to the jury that deal with the matter.

As our recent blog explains, if someone dies as a result of another’s negligence, a wrongful death action is the legally proper and exclusive claim to pursue for compensation. See Virginia Code § 8.01-56, (1950). However, what is the appropriate action to take if it is unclear whether the injured person died as a result of the injury or if a defendant disputes that the injury caused the death? Whether the plaintiff died as a result of the injuries caused by the negligent party is important because it determines the nature of the recoverable damages. As we have already written in a negligence claim when a person is injured, the injured party is entitled to be compensated for their medical expenses, physical injuries, physical and emotional pain and suffering, inconvenience and loss of salary.

Rakin clarifies that in a wrongful death action, recoverable damages are intended to compensate close family members of the deceased primarily for their injuries and emotional losses. Fortunately, Virginia law makes it clear that it is appropriate to bring a survivorship action seeking damages for bodily injury and a wrongful death action seeking damages for wrongful death in the same case. In the event that a survivorship action and a wrongful death action are brought in the same case, the plaintiff’s attorney must choose which action to recover as a last resort, as there can only be one recovery for damages caused by the negligence of the defendant. As the Supreme Court of Virginia wisely held in Centra Health, Inc. vs. Mullins277 Go. 59 (2009), the choice of what action to recover, and therefore what damages to recover, should only be made after the jury has rendered its verdict.

The death of a party creates legal and practical issues that need to be resolved. If you or a loved one has such a claim, it is wise to consult experienced personal injury attorneys such as Curcio Lawbecause we are always happy to help you.


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