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Wrongful Death and Survival Lawsuits in Texas

A loved one had died in a car accident that was someone else’s fault. After the initial shock and denial have subsided, a measure of anger at the damage that has been caused by the at fault driver sets in. You want the person that caused the accident to pay for their mistake. Your life has been turned upside down. The death of a loved one has caused emotional and financial harm. The greatest loss is the loss of companionship and society of the loved one; however, there are very real financial losses that accompany the death of a loved one. How are you going to make ends meet now that you have lost the second income? How are you going to cope now that your loved one is gone? Is there anything that can be done?

Perhaps the most difficult and heart-wrenching cases that we handle occur when we represent someone who has lost a husband or a child in an automobile accident. We would love to turn back time and make this all go away. Nothing can bring a loved one back. The goal of the personal injury lawyer is to help the family receive as much compensation as possible to help with the hardships that have accompanied the loss. Our other goal is to help a family seek closure by holding the guilty party accountable for their actions.

In this post, we will discuss the ins and outs of the Texas wrongful death laws which are designed to compensate for the devastating loss of a loved one.

What are the Texas Wrongful Death Laws?

Under the common law (the judicially determined laws that govern negligence lawsuits) a person’s right to recover for damages in a personal injury lawsuit ended when the person died. In other words, at common law, there was no such thing as a wrongful death lawsuit. To deal with that harsh reality, the Texas legislature enacted a statute to allow for recovery of wrongful death damages by certain family members. Texas wrongful death is covered by Chapter 71 of the Texas Civil Practice and Remedies Code. The statute provide that a person is liable for damages because of an individual's death if the injury was caused by the person's or his agent's or servant's wrongful act, neglect, carelessness, unskillfulness, or default.

Who Can Recover for Wrongful Death?

There are only certain family members that can benefit from and bring an action for wrongful death in Texas. The surviving spouse, children and parents of the deceased may bring an action for wrongful death. We call this class of family members wrongful death beneficiaries. Brothers and sisters of the deceased are not entitled to bring an action for wrongful death.

An unmarried significant other of the deceased is not able to bring a wrongful death action; however, because Texas recognizes common law marriage, we have been able to successfully claim that the couple were in fact common law married on more than one occasion. Per Section 2.401 of the Texas Family Code, a valid common law marriage in Texas occurs where a man and woman become husband and wife where there is no marriage license and no formal marriage ceremony. A common law marriage occurs where you have "lived together in this state as husband and wife." and have "represented to others" that you are married. The definition of common law marriage most likely would apply to same sex couples who meet the requirements of common law marriage given the United States Supreme Court’s decision to recognize same sex marriage under the U.S. Constitution in Obergefell v. Hodges, 576 U.S. ___ (2015).

The statute also allows the parents of unborn children to recover for the loss of their child in utero. The wrongful death statute provides a right to recovery to the parents of unborn children as if the individual injured had lived or had been born alive. This means that the parents of an unborn child who does not survive the trauma of an accident may recover for their loss of the child in Texas. There are exceptions to this rule. A wrongful death lawsuit may not be maintained a gainst the pregnant mother. Further, under most circumstances, a wrongful death action for the death of an unborn child may not be made in a medical malpractice claim.

What Types of Damages are Recoverable?

There are several types of damages that a wrongful death beneficiary can recover under the wrongful death statute. Recoverable damages include:

  • Mental anguish: A wrongful death beneficiary may recover damages for their emotional pain, anguish and suffering that results from the death of a family member.
  • Loss of Consortium: This is the loss of companionship and society occasioned by the wrongful death of a loved one.
  • Financial losses: A person can recover for the monetary loss an individual may experience caused by the relative’s wrongful death. These pecuniary losses may include loss of support and other financial expenses like living, travel, medical and funeral expenses.
  • Loss of inheritance: This element of recovery compensates for the loss of inheritance the decedent would have accumulated and left to a wrongful death beneficiary if he or she had lived a normal expected lifetime.

What is a Survival Claim and How is It Different from a Wrongful Death Claim?

A survival claim is also allowed in Texas and it differs from a wrongful death claim in many important respects. A survival claim includes the claims of the decedent that accrued before his or her death as a result of the at fault party’s negligence. Section 71.021(b) of the Texas Practice and Remedies Code governs survival actions. The survival statute allows the decedent’s estate, heirs or legal representatives to bring a survival action. It is called a “survival” lawsuit because it allows a personal injury lawsuit to "survive" the death of a person. The survival lawsuit is equivalent to a personal injury lawsuit the decedent could have maintained had the person lived. This means that the survival lawsuit can include a claim for medical bills incurred by the decedent, pain and suffering and mental anguish of the decedent,

and lost wages and loss of earning capacity caused by the negligence of the defendant. In the survival action, the plaintiff is the legal representative of the estate of the decedent. This is most often one of the wrongful death beneficiaries (for example, the surviving spouse of the decedent). Your personal injury lawyer will help you determine who should be the legal representative of the decedent’s estate. Unlike a wrongful death action where the recovery is directly for the wrongful death beneficiaries, any damages awarded in a survival action will belong to the estate.

The money recovered will then be distributed to those people who would have received them had the decedent obtained them immediately before death. If the decedent had a will, the estate representative will pay the person or persons entitled to inherit under the will. If the decedent died without a will, then the estate’s recovery will be determined under the laws that apply when a person dies without a will (called “intestate succession”). Let me provide a brief example of how the wrongful death statute and the survival statute work. We recently represented the estate of a woman who was killed as a result of bus driver’s negligence. The woman was never married and did not have any children. The woman’s parents were deceased. Because there were no wrongful death beneficiaries (no surviving spouse, children or parents), we were not able to bring a wrongful death claim for the woman’s brothers and sisters. However, the case was not a total loss. The woman died without a will. Under the laws of intestate succession, the brothers and sisters were entitled to inherit from their sister’s estate. We had one of the sisters named as the personal representative of her sister’s estate. We then were able to bring a lawsuit under the survival statute for all of the damages the woman would have been able to recover had the woman survived the bus crash. We made a claim for all of the medical bills of the woman caused by the crash as well as her significant pain and suffering claim that she suffered as a result of the crash. Upon settlement, the brothers and sisters equally split the proceeds of the settlement under the inheritance laws.

Have questions about the loss of a loved one caused by someone else’s negligence? Give the wrongful death attorneys at Harmonson Law Firm a call at (915) 584-8777. Our attorneys are licensed in Texas, New Mexico, Arizona and California and know the wrongful death laws in each of those states.

© Harmonson Law Firm, P.C., 2018