As injury attorneys in Charleston, South Carolina, we’ve helped families who’ve lost a loved one in an accident. In South Carolina, there are two separate legal claims that can be brought when someone dies in an accident. The first type of claim, a wrongful death action, compensates the survivors and beneficiaries of a deceased for their loss. The second type of claim, a survival action, is a legal claim that “survives” the person’s death to allow for recovery for injuries to the deceased. In this article, our injury lawyers in Charleston explain both wrongful death claims and survival actions including how such claims are filed and the types of damages that can be recovered.
What is a Wrongful Death Claim in South Carolina?
South Carolina’s wrongful death statute, Section 15-51-10 through 60, allows a lawsuit to be brought on behalf of the deceased’s spouse and children when a family member has died due to the deliberate, reckless, or negligent actions of another. If there is no spouse or children, then the lawsuit is for the benefit of the deceased person’s parents. If there is no spouse, children, or parents, then the lawsuit is for the benefit of the deceased person’s heirs (heirs are persons who are legally entitled to inherit property from the deceased).
What Type of Accidents Can be the Reason for a Wrongful Death Lawsuit in South Carolina?
In South Carolina, any type of fatal accident can be the reason for a wrongful death lawsuit, including:
- Auto accidents
- Motorcycle Accidents
- Truck accidents
- Medical malpractice
- Nursing home abuse and neglect
Who Can Sue for Wrongful Death in South Carolina?
Under South Carolina law, the wrongful death action must be brought by (or in the name of) the executor or the administrator of the deceased person. An administrator or executor is a person or an institution that carries out the terms of a deceased’s will or, if there’s no will, distributes the deceased’s property according to South Carolina’s probate laws.
What Types of Damages Can You Recover in a Wrongful Death Claim in South Carolina?
Damages awarded in wrongful death settlements or jury verdicts attempt to compensate for the current and future financial and emotional costs to the deceased’s family. These damages include:
- Medical bills and funeral costs
- Lost wages, including future earnings
- Lost benefits
- Pain and suffering
- Mental anguish
- Loss of support or companionship
- Funeral expenses (unless these are recovered through a survival action)
- Punitive damage (for willful, wanton, reckless, or intentional conduct)
Damages in the form of medical bills and funeral costs are the least difficult to calculate by totaling those sums incurred (regardless of any payments made by an insurance company). Lost future earnings and benefits are more difficult to calculate and require a determination of the anticipated lifespan and earnings of the deceased. Pain and suffering, mental anguish, and loss of companionship are the most difficult damages to calculate. Such damages are, of course, subjective and unique to each person’s sense of loss.
Any damages recovered in a wrongful death action are divided among the spouse, the children, the parents or the heirs according to the shares that they would have been entitled to if the person had died without a will.
What is a Survival Action in South Carolina?
Unlike wrongful death claims that are made for the family members’ benefit, survival actions are made for the benefit of the recently deceased. South Carolina’s survival action statute, Section 15-5-90, allows a person who has been injured but doesn’t die right away, to recover for damages incurred during the time between the accident and the person’s death.
What Types of Damages can be Recovered for a Survival Action in South Carolina?
Because survival actions are brought on behalf of the recently deceased person and not on behalf of that person’s family, there’s no recovery for damages that were suffered after the person’s death except for funeral expenses. In a survival action, South Carolina law allows the deceased’s estate to recover damages for:
Conscious pain and suffering
- Emotional distress
- Medical expenses
- Funeral expenses (unless these are recovered through a wrongful death action)
Who Can file a Survival Lawsuit in South Carolina?
Like a wrongful death claim, a survival action must be brought by (or in the name of) the executor or the administrator of the deceased person. Typically a survival action is brought together with a wrongful death claim. Like a wrongful death claim, Any damages recovered are divided among the spouse, the children, the parents, or the heirs according to the shares that they would have been entitled to if the person had died without a will.
Lawyers for Wrongful Death and Survival Claims in Charleston, South Carolina
If you need a wrongful death lawyer in Charleston, South Carolina, please contact our office to assist you and your family. We can help you to bring both wrongful death and survival claims by opening the estate in probate court, ensuring an appropriate Personal Representative is appointed for the deceased’s estate, guiding your family through the probate process, and negotiating a settlement or filing a lawsuit if there’s no settlement.
