A Nevada survival action is when the estate of a dead accident victim sues the wrongdoer for injuries sustained by the decedent before he/she died. The estate may be able to recover such Nevada compensatory damages as:
- medical bills in Nevada,
- lost wages in Nevada,
- loss of consortium in Nevada,
- pain and suffering in Nevada, and
- attorney’s fees
Should a survival action go to trial, the estate can also try to recover punitive damages in Nevada. Punitive damages can be far greater than compensatory, which are meant only to reimburse the decedent’s estate for expenses caused by the accident.
Survival actions are different from wrongful death lawsuits in Nevada, which is when the decedent’s family sues for damages caused by his/her death (such as funeral expenses). But the two causes of action can often be combined in the same lawsuit.
In this article, our Las Vegas personal injury attorneys explain what Nevada’s survival actions are and how they work. Click on a topic to jump directly to that section:
- 1. Definition
- 2. Executors
- 3. Damages
- 4. Pain & Suffering
- 5. Punitive Damages
- 6. Statute of Limitations
- 7. Survival v. Wrongful Death
Sometimes accident victims die before they can bring — or finish prosecuting — a personal injury lawsuit. If this happens, Nevada’s “survival” laws under NRS 41.100 permit the deceased plaintiff’s estate to take over fighting the case and recover any damages.
In short, the claims of the deceased plaintiff “survive” his/her death.1
Example: Hank crashes into Jim while driving on the I-15, and Jim sustains a broken leg. Jim sues Hank in Clark County’s Eighth Judicial District Court for violating Nevada negligence laws in an effort to recover money to pay for his medical bills and pain and suffering.
While the lawsuit is ongoing, Jim gets shot by a burglar and dies. Under Nevada’s survival laws, Jim’s estate can continue prosecuting the negligence case against Hank.
In the above example, Hank does not get off the hook for causing Jim’s broken leg just because Jim can no longer personally prosecute the negligence case. Instead, Jim’s estate can assume the position of plaintiff and continue prosecuting Hank on Jim’s behalf. Any damages Hank pays Jim’s estate would then be distributed to his/her heirs.
When a plaintiff in a personal injury lawsuit dies in Nevada, his/her “estate” becomes the plaintiff. The estate’s “executor” or “administrator” is then tasked with prosecuting any ongoing lawsuits.2
The identity of the executor is often named in the deceased plaintiff’s will or trust. Otherwise, Nevada law has default rules for determining who acts as an estate’s executor.
Once the lawsuit resolves, the executor will then distribute any money damages to the deceased plaintiff’s heirs.
The executors in a survival action may pursue “all losses or damages” which the deceased plaintiff sustained prior to his/her death.3 Examples include:
- medical bills,
- lost wages from being injured,
- loss of consortium, and
- attorneys’ fees
As discussed in the following sections, the defendant may also be liable for “pain and suffering” and punitive damages as well.
Executors in survival lawsuits may go after the defendant for “pain and suffering” damages.4 However, pain and suffering can be tricky for the executor to prove or calculate since the deceased plaintiff is obviously unavailable to provide any testimony.
Executors in survival lawsuits may go after the defendant for any “punitive damages” that the deceased plaintiff would have recovered had he/she lived.5
Note that if the defendant in a personal injury lawsuit dies before a lawsuit is resolved, then the plaintiff may not seek punitive damages from the deceased defendant’s estate. Since punitive damages are meant to punish defendants for their wrongful conduct, punitive damages become moot once the defendant dies and therefore cannot be punished.6
State law imposes time limits — called a statute of limitations in Nevada — before which accident victims may bring a lawsuit. If the victims do not bring a lawsuit during that time limit, then they forfeit their legal rights to pursue damages for that accident.
When accident victims die before that time limit is up, the executor to their estate can still bring a lawsuit anytime during that time limit. But if the victim dies less than a year before that time limit is up, the executor has a full year from the victim’s death to bring to bring a survival action.7
Example: Jane slips and falls on a newly washed floor at the Bellagio, breaking her arm. Jane has a viable negligence claim against Bellagio for failing to put out the “Caution: Wet Floor” sign.
Nevada law mandates a two-year statute of limitations for negligence claims.8 One-and-a-half years after the accident, Jane dies from a heart attack.
Since Jane died less than a year prior to the two-year statute of limitations running, Jane’s estate has one full year to bring a survival claim against the Bellagio. Therefore, the latest Jane’s estate can bring a claim is two-and-a-half years after the incident.
When an accident victim dies, the victim’s estate needs time to address all the legal consequences and ramifications of the death. Presumably, this is why Nevada law permits executors extra time to file a survival claim if the victim died within a year of the statute of limitations.
Survival lawsuits are entirely separate actions from wrongful death. However, they may be combined into the same lawsuit depending on the circumstances.
The most basic difference between the two claims is that a survival action compensates an estate for damages the victim incurred while he/she was still alive; in contrast, a wrongful death action compensates the victim’s family for damages that the victim’s death caused.9
In short, the underlying claims of a survival action — such as negligence — would still be viable if the victim never died; it is just that the victim happened to die before the claims could be litigated or resolved. But a wrongful death action can go forward only if the victim dies.
Examples of wrongful death damages include:
- funeral expenses,
- loss of consortium to the victim’s spouse, and
- loss of financial support
Wrongful death claims may be brought in Nevada no later than two years after the victim’s death.
Call a Nevada personal injury attorney…
Injured in an accident in Nevada? Contact our Las Vegas accident attorneys. We will fight for the largest financial settlement possible in your case. And if necessary, we will take the matter to trial in pursuit of hefty punitive damages as well.
Injured in California? See our article on California survival action laws.
Injured in Colorado? See our article on Colorado survival action laws.
- NRS 41.100 Cause of action not lost by reason of death; damages; recovery for loss arising out of unfair practice regarding policy of life insurance; subrogation.1. Except as otherwise provided in this section, no cause of action is lost by reason of the death of any person, but may be maintained by or against the person’s executor or administrator.2. In an action against an executor or administrator, any damages may be awarded which would have been recovered against the decedent if the decedent had lived, except damages awardable under NRS 42.005 or 42.010 or other damages imposed primarily for the sake of example or to punish the defendant.
3. Except as otherwise provided in this subsection, when a person who has a cause of action dies before judgment, the damages recoverable by the decedent’s executor or administrator include all losses or damages which the decedent incurred or sustained before the decedent’s death, including any penalties or punitive and exemplary damages which the decedent would have recovered if the decedent had lived, and damages for pain, suffering or disfigurement and loss of probable support, companionship, society, comfort and consortium. This subsection does not apply to the cause of action of a decedent brought by the decedent’s personal representatives for the decedent’s wrongful death.
4. The executor or administrator of the estate of a person insured under a policy of life insurance may recover on behalf of the estate any loss, including, without limitation, consequential damages and attorney’s fees, arising out of the commission of an act that constitutes an unfair practice pursuant to subsection 1 of NRS 686A.310.
5. This section does not prevent subrogation suits under the terms and conditions of an uninsured motorists’ provision of an insurance policy.
Davenport v. State Farm Mut. Auto. Ins. Co., 81 Nev. 361, 404 P.2d 10 (1965), superseded by statute as stated in Edward J. Achrem, Chtd. v. Expressway Plaza Ltd. Pshp., 112 Nev. 737, 917 P.2d 447, 112 Nev. Adv. Rep. 94 (1996)(A person’s right to sue for personal injuries survives and is assignable; the proceeds of a settlement may be subject to a subrogation contract.).
- Id.; see also Maxwell v. Allstate Ins. Cos., 102 Nev. 502, 728 P.2d 812 (1986)(An insurer may not obtain subrogation rights from its insured for medical payments).
- Allen v. Anderson, 93 Nev. 204, 562 P.2d 487 (1977)(Punitive damages may be available only if the defendant is still living.).
- NRS 11.310 Death of person entitled to bring action before limitation expires; death of person against whom an action may be brought.1. If the person entitled to bring an action dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced by the person’s representatives, after the expiration of that time, and within 1 year from the person’s death.2. If a person against whom an action may be brought dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced against the person’s executors or administrators after the expiration of that time, and within 1 year after the issuing of letters testamentary or of administration; provided:
(a) The final account of such executor or administrator in the estate of such decedent be not sooner filed, and that a claim therefor be presented as required by the law governing estates of deceased persons.
(b) That no real estate of a deceased person shall be liable for the debts of the deceased person other than recorded encumbrances, unless letters testamentary or of administration be granted within 3 years from the date of the death of such decedent, any law to the contrary notwithstanding.
- NRS 11.190.
- NRS 41.085.