What is a Wrongful Death Action
Wrongful death is the death of another person due to the neglect, carelessness, wrongdoing, or default of a third party. This gives the right to an action where the family members can recover for the loss of love, companionship, comfort, care, assistance, protection, affection, society, and moral support.
Who Can File a Wrongful Death Claim
According to California’s wrongful death statute, the following people are allowed to file a wrongful death lawsuit:
- the decedent’s surviving spouse or domestic partner
- the decedent’s surviving children and/or
- the issue of any deceased child of the decedent, or
- if there is no issue, persons who would be entitled to the property of the decedent by intestate succession (this can include the deceased person’s parents, or the deceased person’s siblings, depending on who is living at the time of the deceased person’s death.)
In addition to the above-identified individuals, the following people can also bring a wrongful death lawsuit in California if they can show they were financially dependent on the deceased:
- the decedent’s “putative spouse” (means the surviving spouse of a void or voidable marriage who is found by the court to have believed in good faith that the marriage to the decedent was valid.)
- children of the decedent’s putative spouse
- the deceased person’s stepchildren
- the deceased person’s parents, and
- the legal guardians of the decedent if the parents are deceased.
What are Liens:
Liens are a claim of a right to payment. Liens are commonly asserted in personal injury cases. The “personal injury lien” represents a claim of a right to payment from the proceeds received from any resulting settlement or judgment. Liens in personal injury cases are usually asserted by a medical provider or an insurance carrier.
Can a Lien for Medical Expenses and Treatment of the Decedent be Asserted in a Wrongful Death Action?
A lien can be asserted if it is related to an action. Meaning the proceeds were made in connection with the injury asserted in the complaint.
To understand the legitimacy of a lien asserted in a wrongful death action, it is important to differentiate between “Survivor Action” and “Wrongful death Action,” the former of which can be a part of a “Wrongful Death” action.
The wrongful death action is not based upon injury but is based on death. Had there been no death, there could have been no such action. The wrongful death is an independent action
founded upon an event subsequent to the injury of the decedent Pacific Emp. Ins. Co. v. Hartford Steam Boiler Inspection & Ins. Co. , (1956) 143 Cal. App. 2d 646, 649.)
To conclude, the family members bring this kind of action for their rights, such as loss of love and companionship, and not the rights of the Decedent.
B. Survivor Action
In a survivor’s action, the injury is the foundation of an action. The action may proceed if either the decedent lived and proceeded on different grounds or that an action is brought on behalf of a decedent’s estate for injuries or damages incurred by the decedent immediately before dying.
A probate representative must be appointed by a probate judge in a proceeding filed in the appropriate probate court. A survival cause of action can be filed by the estate’s court-appointed personal representative.
To summarize, based on the above-mentioned, if a lien is asserted for payments made for the medical services and treatment of the decedent in a third-party action for wrongful death for loss of love, companionship, comfort, care, assistance, protection, affection, society, and moral support by family members, the lien likely will not stand as it is not related to the family members’ injuries sought in the lawsuit.
Damages that Decedent suffered, like medical expenses prior to death, can only be recovered in a survivor action, hence a lien assertion will be proper only in a survivor action.
For experienced legal representation in California wrongful death cases, get in touch with Haffner Law today.