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How Should the Actions be Pursued?

Wrongful Death and Survival Actions Pleading, Proving and Valuing

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Wrongful death and survival actions are distinct causes of action that are cumulative and not alterative. The Pennsylvania Rules of Civil Procedure provide that a cause of action for wrongful death and a survival action may be enforced in one action, but if independent actions are commenced they must be consolidated for trial. If an action seeks to enforce only one of the causes of action, the court, on its own motion or the motion of any party, may stay that action until an action is brought to enforce the other cause of action, or until the statute of limitations has run on the other cause of action. The Supreme Court has disapproved of the grant of a new trial as to one of the actions without granting a new trial as to the other action. And if a remittitur is granted in a case involving both a wrongful death and a survival action, the court should designate the amount of the remittitur to each action.

The purpose of the requirement of consolidation is to prevent a duplication of damages, since the damages in the two actions are cumulative and are not to overlap or result in duplication of damages. Where the actions are tried together, the jury must bring in separate verdicts in the wrongful death action and the survival action.

Distribution of the wrongful death proceeds is in accordance with the intestate law. Intestate heirs who were receiving no pecuniary benefit from the decedent may not be entitled to share in the proceeds of a wrongful death action even though they would be entitled to receive a portion of the decedent’s estate.