Survival Actions in Maryland Claims Made by Victim's Estate

When a person dies because of someone else's negligence, there are typically two types of claims that are created: survival and wrongful death. The survival claim isn't named terribly well -- is the claim made by the estate for specific types of injuries. It makes more sense if you think of the claim as the thing that "survives" the death. The wrongful death claim, by contrast, is made by the beneficiaries of the dead individual (typically spouse, children and/or parents) for their emotional losses. The law permitting survival actions is found in MD. CTS. & JUD. PROC. 6-401.

Deadlines in Survival Action Lawsuits
More on Death Claims

Like most Maryland negligence cases, survival claims must be filed in the courts within three years of the date of the negligence. The exception is the discovery rule, which starts the three-year clock on the date that a plaintiff knew or reasonably should have known about the negligence. It goes without saying that each case is very fact specific, and you don't want to be a test case for the courts. If you can file within three years of the negligence, you're likely to be better off. Medical malpractice cases have a slightly different rule -- it's typically three years from the date of negligence, but not to exceed five years from the date of negligence when applying the discovery rule (click here for a more detailed analysis of this statute of limitations issue). The other cautionary note is that there may be shorter deadlines, particularly when governments and governmental agencies are involved. For that reason, if you think you have a claim, you should contact a lawyer about the applicable deadlines immediately. Missing a deadline could mean that you lose your chance for recovery.

Damages Available for Survival Claims

It is important to remember that the survival claim is mostly for injury to the person who died (lawyers use the antiseptic-sounding word "decedent"). If death is instantaneous, most survival action damages will not be recoverable. The law will therefore permit the estate to recover the following damages:

  • Funeral expenses (up to the limit stated in Md. Code, Est. & Trusts 8-106(c), which is $10,000 in 2013). Md. Code Est. & Trusts 7-401.
  • Property damage
  • Medical expenses between the time of injury and the time of death
  • Lost wages between the time of injury and the time of death
  • Non-economic damages between the time of injury and death (non-economic damages include things like pain, suffering, mental anguish, and physical impairment)
  • Punitive damages, when allowed (punitive damages, meant to punish the wrongdoer, are not typically allowed in Maryland automobile accident claims)
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Importantly, there are limits on the amount of non-economic damages recoverable in a survival claim. The cap is different for medical malpractice cases and non-medical malpractice cases. There is a separate cap on wrongful death cases -- so, if the decedent leaves behind family members, there is more potential for a higher monetary recovery. These damages go directly to the estate of the deceased, and are taken care of by the personal representative of the estate.

The personal representative is someone, usually a family member, who has been approved by the courts to handle the decedent's affairs. The personal representative will then make distributions of any money received according to Maryland law -- pursuant to the will if there is one, otherwise according to the laws of intestate succession (more lawyer-speak, meaning according to the statutes that say how property passes when someone dies without a will).

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