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Death Before Settlement.

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I have had several cases in my office this year, where unfortunately, the individual injured in a serious automobile accident died prior to the case being settled. It raises the question whether the case can still be pursued, after their death? Under common law, a personal action died with the person. Under the common law, actions for personal injuries due to negligence were abated at the death of either the wrongdoer or the person who had been injured in the accident. Under statutory law in the State of Wisconsin, a cause of action for personal injuries survives the death of the injured party, under the provision in the general survival statute relating to actions for “damage to the person.”

There is also a difference between a “survival action” and a “wrongful death action.” The survival action is brought by the personal representative of the deceased for personal injury damages suffered by the decreased prior to his death. The damages accrue to the estate of the deceased. The right to bring a survival action is based on sec. 895.01 Stats., and the predecessor sections to that statute. See; Prunty v. Schwantes, 40 Wis. 2d 418 (1968).

Sec. 895.01 of the Wisconsin statutes reads as follows: WHAT ACTIONS SURVIVE; ACTIONS NOT TO ABATE (1) (am)
In addition to the causes of action that survive at common law, all of the following also survive;

  1. Causes of action to determine paternity.
  2. Causes of action for the recovery of personal property or the unlawful withholding or conversion of personal property.
  3. Causes of action for the recovery of the possession of real estate and for the unlawful withholding of the possession of real estate.
  4. Causes of action for assault and battery.
  5. Causes of action for false imprisonment.
  6. Causes of action for invasion of privacy.
  7. Causes of action for a violation of s. 968.31 (2m) or other damage to the person.
  8. Causes of action for all damage done to the property rights or interests of another.
  9. Causes of action for goods taken and carried away.
  10. Causes of action for damages done to real or personal estate.
  11. Equitable actions to set aside conveyances of real estate.
  12. Equitable actions to compel a reconveyance of real estate.
  13. Equitable actions to quiet the title to real estate.
  14. Equitable actions for specific performance of contracts relating to real estate.

(bm) Causes of action for wrongful death shall survive the death of the wrongdoer whether or not the death of the wrongdoer occurred before or after the death of the injured person.
(2) An action does not abate by the occurrence of any event if the cause of action survives or continues.

Under sec. 877.01 TORT ACTIONS ON SURVIVING CAUSES. If a cause of action survives under ch. 895, a personal representative may maintain an action on the cause of action against the wrongdoer in every case in which the decedent could, if living, maintain the action and, after the wrongdoer’s death, against the wrongdoer’s personal representative, except that this section shall not extend to actions for slander or libel.

So, it is clear under the statutory provisions in the state of Wisconsin, that if a person who was injured in an accident dies before the case can be resolved, the action survives and the representative of the estate may pursue the claim. This is different than a “wrongful death case” where the person immediately dies as a result of an accident or act of negligence. The cause of death in a “survival action’ may occur months or even a year after the accident and the death may be for reasons completely unrelated to how the accident happened occurred or how that person may have been injured. After the death of the person injured in the accident, it will incumbent to go to probate court to have a family member appointed as a representative of the estate to continue to pursue the claim. Without authority from probate court, no surviving family member has the legal authority or right to be pursuing the case. If the person died with a Will, the Will would designate the personal representative and it would be that person’s responsibility to file the original Will with probate court within 30 days of the person’s death, and petition to have the Will admitted to probate and letters of administration issued, appointing the personal representative to act in behalf of the estate. If there was no Will, and the overall size of the decedent’s estate is less than $50,000, a family member can petition to have letters of “special administration” appointed, and the Special Administrator can pursue the decedent’s case. If the estate is more than $50,000, even without a Will, a Personal Representative of the Estate will need to be appointed. Once that occurs, either the Special Administrator or Personal Representative of the Estate, will have legal authority to sign medical releases, legal papers, final release papers, settlement checks to properly conclude the injury case or pursue the case to trial, if necessary. Once a settlement is received, the settlement money belongs to the estate, and the surviving heirs would be entitled to the net settlement proceeds, after payment of attorney’s fees, costs, and all of the various medical bills, hospital bills and any health insurance subrogation liens. If there is a Will, the Will would dictate who receives the proceeds. In the absence of a Will, intestate law would dictate which family members are entitled to the settlement proceeds.

If you have questions about the survival of actions when a loved one or family friend dies before settling their injury case, call one of the experienced personal injury lawyers at Karp & Iancu, S.C. to find out what your rights are and how to proceed with the case.

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