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PERSONAL INJURY: Death of a Litigant

Life is unpredictable. Oftentimes, so is death. In many instances, the plaintiff will pass away before the case settles or prior to trial. Death alone does not allow defendants to discard of the case or to file a request for dismissal. If the decedent had a case pending at the time of their death, Code of Civil Procedure Section 377.31 states that their representative can file a motion after the death of the person who started the action and the court shall allow it to be continued by the decedent's estate, or if none, by the decedent's heirs/successors in interest. The next question is does it affect the damages that can be recovered? Yes. In a survival action the damages recoverable are limited to the loss that the decedent sustained or incurred before death, i.e., economic losses such as medical expenses ALREADY incurred. Penalties, punitive and/or exemplary damages will no longer be recoverable.

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