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Defining a Survival Action

April 9, 2018

“Important information for those representing their loved ones”

The anguish and stress that comes with seeing a loved one debilitated or severely injured are often compounded by the responsibility placed on you to care for him or her going forward. The expenses associated with such care may leave you with little choice but to seek compensation on his or her behalf from the party responsible for their injuries. Yet initiating a legal action may add further stress can complication to your situation.

What if, for example, your loved one dies before his or her case is resolved?

Suddenly, you are left fighting for someone who is no longer living. Does such a fight stop with his or her death? According to Section 27-1-501 of Montana’s Annotated Code, the answer to that question is no. This statute clearly state’s that any action does not abate with the death of the party on whose behalf it was initiated. Rather, it transfers to you and/or his or her other representatives.

Such a case is typically referred to as a “survival action”. The damages that you may be awarded in such an action are meant to compensate your loved one for the pain and suffering they had to endure from the incident that eventually led to their death.

Importantly, this differs from a wrongful death lawsuit in that damages for wrongful death are awarded to help you and other heirs endure the losses of support and companionship caused by the loved one’s passing.

The law does not allow you to bring a wrongful death lawsuit in conjunction with a survival action. The cases would be combined, and only damages for one would be awarded.