A survival action in Colorado is a lawsuit brought on behalf of a deceased person for damages sustained by the decedent (the person who died) for losses he or she suffered.
Difference Between “Survival” and “Wrongful Death”
While both actions are filed as a result of:
- another person’s wrongful acts
- that cause the death of a person
the significant difference is that the damages for a survival action are for the decedent him or herself.
Wrongful death actions seek damages that certain loved ones suffer as the result of the accident, not the damages suffered by the decedent.
Both types of actions may be pursued after an accident, which means that both a survival action and a wrongful death claim can be filed against a negligent party.
What Damages Can Be Recovered?
Damages that can be recovered by the decedent’s estate include, but are not limited to:
Who May Bring the Lawsuit?
The only individual permitted to file a survival action in the State of Colorado is the personal representative of the victim.
This appointed person makes all of the decisions regarding whether to settle, take the case to trial, and any other important decisions relating to the case.
Below, our Colorado personal injury attorneys address frequently asked questions about survival actions in personal injury lawsuits:
- 1. What is a “survival” action in Colorado?
- 2. What is the difference between a “survival” action and a “wrongful death” claim in Colorado?
- 3. What types of damages can I recover as a part of my lawsuit?
- 4. Who is allowed to bring a survival action against a negligent person?
1. What is a “survival” action in Colorado?
A survival action is a lawsuit filed on behalf of a deceased victim for money damages suffered by him or her in the time he or she survived before passing.
This type of claim occurs when:
- the decedent survives for a period of time,
- before dying,
- after an accident,
- caused by another person’s wrongful actions (such as negligence).
1.1 What happens if the person died instantaneously?
Damages may not be recoverable under a survival action in Colorado if the decedent was killed instantly. He or she must suffer some economic loss before death, so if death occurred right away there is likely no loss to recover. Instantaneous death does not stop the family members of the decedent from filing a wrongful death action.
However, when there is even a slight delay between the accident and death, courts can find damages appropriate, and a survival action may survive.
2. What is the difference between a “survival” action and a “wrongful death” claim in Colorado?
While both of these types of lawsuits may be brought because of:
- another person’s negligent conduct,
- that result in the death of another individual,
the major distinction is that the damages for a survival lawsuit are for the deceased person him or herself.
2.1 Who may file a wrongful death claim?
With specific time limits that apply to the parties, the following can file a wrongful death claim:
- the decedent’s spouse;
- heirs of the deceased (children);
- the designated beneficiary;
- parents of the deceased (only under specific circumstances).3
2.2 Can both types of action be filed against a negligent party?
Yes. Both types of actions may be pursued after an accident, which means that both a survival action and a wrongful death claim can be filed against a negligent party.
3. What types of damages can I recover as a part of my lawsuit?
Certain types of damages are available in a survival lawsuit, including:
- medical bills;
- lost wages;
- damage to personal property (such as vehicles, home, etc.); and
- funeral expenses.
3.1 How do I prove damages in a survival action?
To prove damages in a survival action, the personal representative of the estate can provide evidence, such as:
- Medical Records: Medical records such as hospital bills and other costs of treatment for the time the decedent survived can show the economic loss suffered.
- Property Damage: A decedent is entitled to property damage costs, such as damage done to a car during an automobile accident.
- Employer Testimony: The testimony of the decedent’s employer can establish the amount of lost wages suffered during the time the decedent survived.
3.2 Are there types of damages that I cannot collect?
Unlike many other claims, a survival action does not include damages for:
- pain and suffering;
- prospective profit loss; or
- for earnings that would have been earned after death
which occur after a person’s death.5
4. Who is allowed to bring a survival action against a negligent person?
The only person in Colorado allowed to bring a survival action is the personal representative of the deceased person.
A personal representative is named by the Colorado probate court handling the deceased person’s estate. The personal representative may have been named in an estate planning document such as:
- a will;
- a trust;
- a power of attorney; or
- a living will.
The personal representative makes all choices regarding whether to settle the case or take it to court, not the family members of the deceased person.6
4.1 What if the decedent did not name a personal representative before his or her death?
If the decedent did not name a personal representative before his or her death, a personal representative will be named by the probate court handling the estate.7
Call us for help…
For questions about survival actions in personal injury cases or to confidentially discuss your case with one of our skilled Colorado personal injury attorneys, do not hesitate to contact us.
We represent clients in and around Denver, Colorado Springs, Aurora, Fort Collins, Lakewood, and several nearby cities. (For cases in California or Nevada, please see our pages on survival actions in California and survival actions in Nevada.)
- CRS 13-20-101. (What actions survive).
- CRS 13-21-202 (Action notwithstanding death).
- CRS 13-21-201 (Damages for death).
- CRS 13-20-101(1).
- Same as 4 (“The damages recoverable after the death of the person in whose favor such action has accrued shall be limited to loss of earnings and expenses sustained or incurred prior to death and shall not include damages for pain, suffering, or disfigurement, nor prospective profits or earnings after date of death.”)
- CRS 13-20-101(2) (“Any action under this section may be brought or the court on motion may allow the action to be continued by or against the personal representative of the deceased. Such action shall be deemed a continuing one and to have accrued to or against such personal representative at the time it would have accrued to or against the deceased if he had survived.”)
- Same as 6.