The importance of understanding the difference between a wrongful death claim and a survival statute claim

 Day on Torts is reporting (here) on a recent case in Tennessee that reminds us of the importance of the difference between a wrongful death claim and a claim under a survival statute.  And what is that difference?  In a nutshell, the recovery in a wrongful death claim goes to the beneficiary as defined in the wrongful death statute, which is usually the decedent's surviving spouse; but the recovery in a claim under the survival statute goes to the decedent's estate.  This means that in a case under the survival statute, it is possible the surviving spouse will get a much more reduced recovery - or none at all.

In this new case, called Sanders v. Higgins (available here), the plaintiff was the surviving spouse of someone who died in an accident. Plaintiff brought a claim against the decedent’s insurance company alleging misrepresentation and negligence.  The parties reached a settlement on the negligence claims, and the trial court ordered disbursement of the settlement proceeds to plaintiff as surviving spouse but the decedent’s estate appealed arguing that the proceeds should have been distributed to the estate. On appeal, the court of appeals agreed with the estate and reversed.