When a fatal accident happens, the law in Indiana allows surviving loved ones or a representative of the deceased’s estate to file claims – either a survival action, a wrongful death claim, or both in some cases. It’s important to understand the difference because these laws affect who can recover damages and for what losses.
What is a Survival Action?
A survival action is a legal claim that lets the estate of a person who passed away collect damages for what that person went through between the time of their injury and their death.
IC 34-9-3-1
Continuing action after death of party. Sec. 1.
- (a) If an individual who is entitled or liable in a cause of action dies, the cause of action survives and may be brought by or against the representative of the deceased party except actions for:
- (1) libel;
- (2) slander;
- (3) malicious prosecution;
- (4) false imprisonment;
- (5) invasion of privacy; and
- (6) personal injuries to the deceased party; which survive only to the extent provided in this chapter.
- (b) An action under this chapter may be brought, or the court, on motion, may allow the action to be continued by or against the legal representatives or successors in interest of the deceased. The action is considered a continued action and accrues to the representatives or successors at the time the action would have accrued to the deceased if the deceased had survived.
It covers the suffering, costs, and losses the deceased experienced as a result of the accident or wrongful act.
Types of Damages Recoverable in Indiana Survival Actions
Damages in a survival action can include payment for medical bills, wages the person lost before passing, and any pain and suffering they endured prior to death. It does not cover losses suffered by the family, but only what the deceased would have been entitled to if they had survived.
Who Can File a Survival Action in Indiana?
This kind of lawsuit is filed by the deceased person’s estate. Usually the personal representative or executor named in the will (or by the court) is responsible for handling the case and making decisions on behalf of the estate.
Timeframe To File a Survival Action in Indiana
In Indiana, a survival action must be filed within 18 months of the date of the person’s death.
Sec. 1. If any person entitled to bring, or liable to, any action, dies before the expiration of the time limited for the action, the cause of action:
- (1) survives to or against the person’s representatives; and
- (2) may be brought at any time after the expiration of the time limited within eighteen (18) months after the death of the person.
Failing to file on time will forfeit a person’s right to recover damages through this type of claim.
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What is a Wrongful Death Claim?
A wrongful death claim is a lawsuit brought by the close family of someone who died because another person was negligent or acted intentionally to cause harm.
(b) If the death of an adult person is caused by the wrongful act or omission of another person, only the personal representative of the adult person may maintain an action against the person whose wrongful act or omission caused the death of the adult person.
This type of claim is designed to help families find justice when a loved one’s life is taken too soon due to another’s actions.
Types of Damages in Wrongful Death Claims
In a wrongful death claim, the family can seek compensation for a range of losses. These include lost income or financial support the loved one would have provided, medical expenses, costs for the funeral and burial, and sometimes the loss of care and companionship. Damages for the grief of the surviving parties is not permissible, and punitive damages cannot be awarded in these actions.
(c) In an action to recover damages for the death of an adult person, the damages:
(1) must be in an amount determined by a:
- (A) court; or
- (B) jury;
(2) may not include:
- (A) damages awarded for a person’s grief; or
- (B) punitive damages; and
(3) may include but are not limited to the following:
- (A) Reasonable medical, hospital, funeral, and burial expenses necessitated by the wrongful act or omission that caused the adult person’s death.
- (B) Loss of the adult person’s love and companionship.
Who Can File a Wrongful Death Claim in Indiana?
Under Indiana law, the only person who may file a wrongful death claim is the personal representative. This is filed on behalf of the surviving spouse and children of the person who died. In some situations, if there is no spouse or child, the parents may have the right to recover damages from the claim.
Indiana Wrongful Death State of Limitations
Indiana requires that a wrongful death claim be filed within two years after the date of the loved one’s death.
When the death of one is caused by the wrongful act or omission of another, the action shall be commenced by the personal representative of the decedent within two (2) years
If the lawsuit isn’t filed within this time, the family may lose the chance to recover damages.
Understanding how a wrongful death claim works can help families make informed choices as they move forward after a tragic loss.
Can Both Claims Be Filed At The Same Time?
Yes, in Indiana, both a survival action and a wrongful death claim can sometimes be filed for the same fatal event. For example, if someone is seriously hurt in a car crash but lives for a period before passing away, the estate could bring a survival action for the pain, suffering, or expenses the person went through before death, while the family could file a wrongful death claim for the financial and companionship-related losses they experience after the loved one is gone.
If you have any questions about whether you’re able to file one or both types of claims, we can help. Contact our Indianapolis wrongful death attorney today to schedule a free consultation.
