Survival Action vs. Wrongful Death Claim in Montana: Understanding the Difference
While both arise from a tragic loss, a wrongful death claim compensates the surviving family for their grief and lost support, whereas a survival action compensates the deceased's estate for the pain and suffering the victim experienced before they died.
When a loved one dies due to someone else's negligence-whether from a car crash, medical malpractice, or a workplace accident-Montana law actually provides two distinct legal pathways for justice. While people often use the terms interchangeably, a wrongful death claim and a survival action serve two completely different purposes.
Understanding the difference between these two claims is essential for maximizing the financial compensation your family receives. Because the rules governing who gets the money and how it is taxed are vastly different, it is critical to consult a skilled personal injury attorney from our Montana directory. They can ensure both claims are filed correctly and simultaneously to fully hold the responsible party accountable.
Step-by-Step Process in Montana
In most Montana cases, your attorney will combine both claims into a single lawsuit filed in a local court, such as the Flathead County District Court, Kalispell.
Step 1: Evaluating Both Claims
First, your lawyer will review the circumstances of the death. If your loved one died instantly, a survival action for pain and suffering might be limited. However, if they survived in the hospital for days or weeks, both claims are incredibly strong. The personal representative of the estate will be appointed to manage the combined lawsuit on behalf of both the heirs and the estate.
Step 2: Litigating and Distributing
Once a settlement is reached, the court must approve how the funds are divided between the wrongful death claim (for the family) and the survival action (for the estate). This division is crucial because it dictates who ultimately receives the money.
Damages Recoverable Under a Survival Action
Under Mont. Code Ann. § 27-1-501, a survival action essentially keeps the victim's own personal injury claim alive after they pass away. The lawsuit seeks to recover the damages the deceased person could have sued for if they had lived. This includes the medical bills incurred trying to save their life, the wages they lost between the accident and their death, and any property damage, such as a totaled vehicle.
Proving Pre-Death Pain and Suffering
The most significant component of a survival action is compensation for the conscious pain and suffering the victim endured before passing. To recover these damages, the victim must have survived the initial accident, even if only for a short time, and must have been consciously aware of their pain. If the death was absolutely instantaneous, Montana courts will deny damages for pre-death pain and suffering, a legal standard upheld in precedents like Swanson v. Champion International Corp., 197 Mont. 509 (MT Supreme Court 1982). Your lawyer will use medical records and witness testimony from paramedics or doctors to prove the victim suffered consciously.
How Settlement Funds are Distributed Differently for Each Claim
The biggest difference between these two claims is where the money goes once the negligent party pays up.
| Type of Claim | Who Receives the Money? | Are Creditors Paid? |
|---|---|---|
| Wrongful Death | Paid directly to the surviving heirs (spouse, children) for their personal loss. | Generally protected from the deceased person's debts and creditors. |
| Survival Action | Paid directly into the deceased's estate. | Must be used to pay off the deceased's medical bills, taxes, and debts first. |
If the survival action funds are deposited into the estate, the Gallatin County District Court, Bozeman will oversee the probate process to ensure creditors are paid before the remaining funds are distributed according to the deceased's will.
How Much Does it Cost in Montana?
Filing these combined claims operates under the same financial structure as any major injury case.
- Attorney Fees: Lawyers charge a contingency fee, generally 33% of the settlement amount, meaning no out-of-pocket costs for the grieving family.
- Expert Witnesses: Proving conscious pain and suffering often requires hiring a medical expert, which can cost $2,000 to $5,000. These costs are usually advanced by your attorney.
How Long Does the Process Take?
Because these cases involve extensive medical evidence and complex probate rules, they often take 18 to 36 months to resolve. Insurance companies fight hard against survival actions, requiring extensive depositions of medical staff to dispute the level of the victim's consciousness before death.
Frequently Asked Questions (FAQ)
Can I file a survival action without a wrongful death claim?
Yes, though it is rare. If a person died from an unrelated cause while a personal injury lawsuit was pending, the estate can continue the personal injury lawsuit as a survival action without filing a wrongful death claim.
Are punitive damages allowed in Montana?
Yes. If the negligent party's actions were intentional or highly reckless (such as a drunk driver), a Montana jury can award punitive damages under a survival action to punish the wrongdoer.
Do I have to pay taxes on the settlement?
Generally, compensatory damages for physical injury and wrongful death are not taxable under federal or state law. However, if punitive damages are awarded, that specific portion is usually taxable.
Who decides how much pain and suffering is worth?
If the case goes to trial, a jury will listen to the medical evidence and decide a fair monetary value for the victim's pre-death suffering based on the severity and duration of the pain.
No reviews yet. Be the first to share your experience!