A few months after being in a car wreck, the unthinkable happens, and as a result of the accident, your loved one passes away. As you are mourning the loss, you also have to start thinking about your legal options that stem from the crash and the possible avenues you have as a "survivor" of your loved one in order to receive some damages from the liable person. While this seems somewhat callous to talk about, especially in light of the pain you are already in from losing someone close to you, it is necessary to begin thinking about this somewhat quickly if you are going to actually be able to bring a survival action.
First, though, what exactly is a survival action? In simple terms, a survival action is an action for damages (an award of money) for injuries incurred by the deceased right before dying. You can think of a survival action as a lawsuit for injuries incurred that the actual deceased would have been able to bring had he or she not passed away. Since the decedent is not able to bring the suit himself or herself, the decedent's estate has to bring the suit. This is typically a child or other close relative. (States will specify exactly which family members are allowed to bring a survival action in that state.)
Along with deeming who can bring a survival action, states also specify during what timeframe individuals are allowed to bring such a lawsuit. This is not because the state or the courts do not want individuals to be able to recover, but rather because a timeframe has to be set so that the liable individual does not have an indefinite period of time during which to worry about the possibility of a lawsuit.
If someone is barred from bringing a suit, it is referred to as "prescription." If someone is "prescribed" from bringing an action, it means that they cannot bring that action. So when is someone barred from bringing a survival action?
In the state of Louisiana, the court and state statutes are pretty clear with regard to the allowable timeframe for bringing a survival action. According to the plain language of LSA-C.C. art. 2315.1, the proper individual can bring a survival action up until one year after the death of the injured person.
Recently one of the Louisiana appellate courts shed further light on this already rather straightforward area of the law. In that case, the defendant tried to argue (and was ruled in favor of in the district court) that the survivor of the deceased only had a year from the actual accident (rather than the death) in which to bring a survival action. The defendant even cited multiple cases in which this was the case; however, the defendant failed to notice the difference between the case at hand and the medical malpractice cases to which it was citing. The two are governed by different statutes.
The survivor also cited to multiple cases. In these cases, the court had affirmed that a survival action could be brought up to a year after the death of an individual and that the action was not automatically prescribed a year after the accident. One of the cases, Domingue v. ABC group, 98-657 (La.App. 3 Cir. 10/28/98), 720 So.2d 806, writ denied, 98-2905 (La.1/15/99), 736 So.2d 210, had very similar facts, and the court ruled in favor of the survivor. This was then again affirmed in some toxic materials exposure and work hazards case. In the case at hand, the deceased individual was involved in a car accident, which is governed by the same statutes as those other lawsuits and is not governed by medical malpractice statutes.
Ultimately, the appellate court found that the applicable statute was quite clear and that in Louisiana a survivor has a year from the date of the death of a loved one rather than from the date of the accident in which to bring a survival action provided that the action had not already been prescribed at the time of death.