written by Melissa Sullivan

When a person’s death arises out of a tort, such as a motor vehicle accident, Colorado law allows for two distinct causes of action to be brought: a survival action and a wrongful death action. These causes of action belong to different persons (or, possibly, to the same persons but in different capacities), and they allow for recovery of different damages. In our experience, there can be hurdles to resolving personal injury claims involving a death when the parties do not understand and appreciate the differences between survival actions and wrongful death actions. This article discusses these causes of actions and common issues that arise in handling personal injury claims involving a death.

Survival Actions in the Personal Injury Context

Survival actions are actions to recover economic damages that the decedent incurred prior to death. Non-economic damages are not recoverable in a survival action. As the statute makes clear, “in tort actions based on personal injury, the damages recoverable after the death of the person in whose favor such action has accrued shall be limited to loss of earnings or 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.” C.R.S. § 13-20-101(1) (2023). By way of example, in a survival action arising out of a motor vehicle accident or other tortious incident, it is common for the decedent’s estate to assert a survival claim to recover the medical expenses the decedent, prior to death, incurred as a result of the incident, such as ambulance and hospital bills. Funeral and burial expenses can also be recovered in a survival action if the decedent’s estate paid for such expenses. See Hernandez v. U.S., 383 F. Supp. 168 (D. Colo. 1974).

Because survival actions allow for the recovery of damages that belonged to the decedent, survival actions belong to the decedent’s estate. They must be brought by the decedent’s estate, by and through the personal representative of the estate, and any recovery belongs to the decedent’s estate.

Wrongful Death Actions in the Personal Injury Context

Wrongful death actions, on the other hand, belong to the person or persons, as identified by Colorado’s Wrongful Death Act, who would have relied on the decedent for financial support and, thus, would have suffered pecuniary loss as a result of the decedent’s death. Even so, such person’s non-economic damages, for the loss of the decedent, are also recoverable in a wrongful death action. More specifically, wrongful death damages include:

Past and future non-economic losses, including grief, loss of companionship, impairment of quality of life, inconvenience, pain and suffering, and emotional stress;
Economic losses, including funeral and burial expenses, if the wrongful death claimant paid for such expenses; and
Any net financial loss the claimant had because of the death. Net financial loss can be defined as the financial benefit the claimant might reasonably have expected to receive from the decedent had the decedent lived.

See C.J.I.-Civ. 10:3 (2020).

Within the first year following the decedent’s date of death, the decedent’s surviving spouse has the exclusive right to bring a wrongful death claim. See C.R.S. § 13-21-201(1)(a) (2023). If there is no surviving spouse, then the decedent’s “heirs”—which, under the relevant section of the Wrongful Death Act, has been interpreted to mean lineal descendants only, see Whitenhill v. Kaiser Permanente, 940 P.2d 1129, 1131 (Colo. Ct. App. 1997)—or the decedent’s designated beneficiary, if one was designated by the descendant pursuant to and in accordance with Article 22 of Title 15 of the Colorado Revised Statutes, may bring the claim. See C.R.S. § 13-21-201(1)(a)(IV) (2023). In the second year following the decedent’s date of death, the claim may be brought by any of these claimants—the spouse or the designated beneficiary and/or the heirs—individually or jointly. See C.R.S. § 13-21-201(1)(b) (2023).

Regardless of who brings the wrongful death claim, the Wrongful Death Act mandates that any “judgment obtained in [a wrongful death action] shall be owned by such persons as are heirs at law of the deceased under the statutes of descent and distribution and shall be divided among such heirs at law in the same manner as real estate is divided according to said statute of descent and distribution.” C.R.S. § 13-21-201(2) (2023). Accordingly, wrongful death proceeds are distributed in accordance with Colorado’s laws of intestate succession.

The relevant distribution provisions can be found at C.R.S. §§ 15-11-102 (2023) (Share of Spouse); 15-11-102.5 (2023) (Share of Designated Beneficiary); and 15-11-103 (2023) (Share of Heirs Other Than Surviving Spouse And Designated Beneficiary).

Notwithstanding the foregoing, if the decedent has no spouse, no designated beneficiary, and no heirs (lineal descendants), then the decedent’s parents, or either of them, may bring the wrongful death claim. See C.R.S. § 13-21-201(1)(c) (2023). The parents have a presumptive equal interest in the judgment; however, if they are divorced, separated, or living apart, they can file a motion with the court prior to trial, to ask the court to fairly apportion any judgment between them. Id.

Common Issues to Resolving Death Claims

While it may sound relatively straightforward on paper, there are some common issues that arise in the context of resolving personal injury claims involving a death. Three issues we encounter regularly are discussed.

1. No Conversation About Why It Matters.

One of the most common issues we see is, when an issue relating to survival-action-versus-wrongful-death-action arises, there is a lack of conversation about why the issue matters. So, step one is understanding and appreciating the fact that, in personal injury cases involving a death, there are two distinct causes of action, that have different purposes, that belong to and must be brought by a particularly defined person or persons, and that have different categories of damages. When issues arise, there cannot be an assumption that the parties are fighting about something that does not matter. Have the conversation about the differences between the causes of action and why it matters in the context of your case.

2. What Claims Are Being Asserted and How Should the Release Be Drafted?

Lawyers know that one person can have different roles and act in different capacities. Colloquially, a person can wear many different hats. The same is true when it comes to survival actions and wrongful death claims. It is not uncommon for the same person (or persons) to have standing to bring both the survival action and the wrongful death action. This is because, often times, the person who is, or has priority to be, the personal representative of the decedent’s estate is also the proper wrongful death claimant. For example, in a case involving a deceased spouse, the surviving spouse usually is, or has priority to be, the personal representative of the estate, and the surviving spouse is a proper wrongful death claimant. Similarly, in a case involving a deceased minor child, the child’s parents usually are, or have priority to be, the personal representative of the estate, and the parents are usually the proper wrongful death claimants as well. So, when a claim is brought for a tort that caused a death and the same person or persons have standing to bring both the survival action and the wrongful death claim, do not assume what claims are being brought or that it will not matter how a settlement release is worded or how the settlement payment is issued.

By way of example, if a claimant is asserting a wrongful death claim only, the claimant will want to receive the settlement payment in the claimant’s individual capacity, as the wrongful death claimant only. The defendant, on the other hand, may need written confirmation that any subrogation claims, such as for health benefits paid for the decedent’s incident-related medical treatment, will not subsequently be brought against the defendant. In such situations, if Colorado’s Made Whole Doctrine, codified at C.R.S. § 10-1-135, applies, the claimant might be able to obtain written confirmation of waiver of subrogation and provide it to the defendant. Or, the defendant may agree to allocate the settlement proceeds to the wrongful death claim if the claimant is agreeable to releasing all claims, as the wrongful death claimant and on behalf of the decedent’s estate, or if the claimant agrees to indemnify and hold the defendant harmless against any valid subrogation claims for amounts paid in connection with the decedent’s incident-related medical treatment. What options might work depend on the facts and circumstances of the case, but, in our experience, workable settlement releases can be agreed upon when both sides talk through the issues, (see #1 above). Unless both sides work together to address the issues, amicable resolution will not be possible.

3. Payment for Survival Claims to Estate Beneficiaries.

In general, it is not always necessary to open an estate for a decedent. It is common for no estate to be opened when the decedent is a spouse or minor child. In the context of pre-litigation death claims, it could be an unnecessary burden to require the claimant to sign the release as the estate of the decedent and/or to issue payment to the estate of the decedent. When no estate will be opened, and the claimant(s) is the sole beneficiary(ies) of the estate, we generally represent this to the defendant and request that the survival claim be resolved by and paid to the claimant(s), in individual capacity(ies), as the beneficiary(ies) or as the decedent’s heirs at law, whichever is applicable.

Conclusion

Handling personal injury claims involving a death will always be emotionally difficult. No one wants to put any additional stress on a surviving spouse, parent, child, or family member. Understanding the causes of action that a claimant has—and how to anticipate and work around some common issues that might arise—can simplify the resolution process.