When a family loses a mother and a son to mesothelioma after decades of running a local business, the law’s role is to provide a measure of justice through damages. But what happens when the legal system awards $0 for the loss of a mother simply because the son died before the trial concluded? A fascinating case involving the Delaware Supreme Court applying Louisiana law reveals the complexities of Survival Actions and the high stakes of valuing human life in asbestos litigation.
Damages are awarded in successful civil instances in order to put the injured party back into a position that they would have been in had the events in the case unfolded as planned or if the transaction had not taken place at all. For example, in a contracts case, if one party ordered and paid for widgets, and does not receive those widgets, then he should be able to get his money back or the court could force the other party to provide the widgets as promised. Sometimes, however, the position that you were in before the deal is not easy to quantify into a dollar amount. In cases where the injury is either physical or emotional, damages are very difficult to estimate.
Survival Actions vs. Wrongful Death: What’s the Difference?
In Louisiana, these two claims are governed by Civil Code Articles 2315.1 and 2315.2. Here is how they differ:
1. The Survival Action (The Victim’s Claim)
A Survival Action (Art. 2315.1) is effectively the personal injury claim the victim would have filed if they were still alive. The law allows this right to “survive” the victim’s death, permitting the family to step into their shoes.
- What it covers: Conscious pain and suffering endured by the victim before they passed, medical expenses incurred between the injury and death, and lost wages.
- The Key Question: “What did the victim suffer while they were still with us?”
2. The Wrongful Death Claim (The Family’s Claim)
A Wrongful Death claim (Art. 2315.2) is a new cause of action that belongs strictly to the survivors. It is meant to compensate the family for their own personal losses resulting from the death.
Calculating damages for a family member’s passing is the core of a wrongful death claim; however, the rules change when the victim passes away from unrelated causes before judgment.
- What it covers: Emotional grief and anguish, loss of companionship, funeral and burial expenses, and the loss of the victim’s future financial support and services.
- The Key Question: “What has the family lost because this person is gone?”
Calculating damages for a family member’s passing is the core of a wrongful death claim; however, the rules change when the victim passes away from unrelated causes before judgment.
If your family has been impacted by industrial exposure, visit our Louisiana Mesothelioma guide to learn about the current settlement standards.
In cases where the injury is either physical, emotional, or both, the court uses a variety of methods to attempt to determine the appropriate amount of damages. For example, if someone has been harmed physically and needs to go to the hospital, then part of the compensation will often include money to cover the hospital bills. If an individual has been troubled emotionally and needs to see a therapist, then the bills for that service will often be considered to figure damages. In addition, the court will often look at past cases to determine what type of monetary award that juries have given to the victim under similar circumstances. If the award that the jury gives is significantly smaller or larger than past awards then the court may intervene to adjust the damages granted.
Who Can File? (The Louisiana Priority List)
Both claims follow a strict “Order of Beneficiaries” in Louisiana. Only the highest surviving group can file; if a higher group exists, the lower groups are barred from recovering:
- First Priority: The surviving spouse and/or children.
- Second Priority: If no spouse or children, the surviving parents.
- Third Priority: If no spouse, children, or parents, the surviving siblings.
- Fourth Priority: If none of the above, the surviving grandparents.
Swipe to see full hierarchy →
| Priority Level | Eligible Family Members | Notes |
|---|---|---|
| 1st Priority | Surviving Spouse and/or Children | If a spouse or child exists, all lower priorities are excluded from recovery. |
| 2nd Priority | Surviving Mother and/or Father | Only eligible if the deceased had no surviving spouse or children. |
| 3rd Priority | Surviving Siblings (Brothers/Sisters) | Only eligible if there are no surviving spouse, children, or parents. |
| 4th Priority | Surviving Grandparents | The final tier of eligible beneficiaries under La. Civ. Code Art. 2315.1 & 2315.2. |
The Delaware Supreme Court and Louisiana Law: An Unlikely Connection
A 2011 Delaware Supreme Court case illustrates this concept very well. In this case, a son and mother were exposed to asbestos while operating a car repair business for over forty years in Louisiana. They died after contracting mesothelioma; the mother died two years prior to her son’s death. Several issues came up in this case regarding the payment of damages. The lower court declared that two businesses were partially liable for the death of these individuals. Therefore, those businesses were ordered to pay $500,000 to the four remaining family members for the loss of their mother, $0 to the son for the loss of his mother, $80,000 to the mother’s estate for pain and suffering, and $1.6 million to the son’s estate for his pain and suffering. All of these funds were given to the four remaining family members.
The jury was instructed to consider each damage award separately so that each award would be fair based on the individualized circumstances. However, when the Court of Appeals reviewed the damages, it commented that the damage awards were probably considered as a whole. It also reasoned that the jury should not award damages to an individual who was deceased at the time of trial. That would explain the lack of damages for the son’s loss of his mother. On the other hand, this reasoning did not explain why he could receive damages for pain and suffering and not for the loss of his mother.
The $0 Award Mystery: Why Timing Matters in a Lawsuit
The Supreme Court of Delaware requested that the lower court find out if Louisiana law allowed people who are deceased at the time of trial to receive damages at all. If not, then the damages as a whole for the son are inappropriate. The Court of Appeals’ assumption that the damages were considered as a whole does not coincide with the fact that the jury was instructed to consider each damage award separately. The Supreme Court of Delaware also noted that a damage award of $0 for the son’s loss of his mother is unheard of in these types of cases. Even if he only suffered from the loss of his mother for the two remaining years that he was alive, the Supreme Court of Delaware believed that he should have been awarded something for that loss.
The Delaware Supreme Court’s application of Louisiana law in this asbestos case serves as a vital reminder: in high-stakes litigation, timing and technicality are everything. Whether a claim is classified as a Survival Action or a Wrongful Death suit determines not just who can recover, but how much that recovery is worth.
When a family is already dealing with the devastating physical and emotional toll of mesothelioma, the last thing they should have to worry about is a “zero dollar” award due to a legal technicality. This case proves that you need an attorney who doesn’t just understand the medical science of asbestos—they must also be masters of the procedural “chess match” that happens behind the scenes.
Don’t let your family’s right to justice disappear because of a change in circumstances. If you or a loved one has been diagnosed with an asbestos-related illness, you deserve a team that will fight to preserve every penny of your claim’s value. Contact the Berniard Law Firm today for a comprehensive review of your rights under Louisiana’s survival and wrongful death statutes.
UPDATE February 2026: Following recent landmark verdicts and the federal approval of MDL 3171, the Berniard Law Firm is now providing nationwide representation for Uber and Lyft sexual assault survivors. If you were harmed during a rideshare trip, click here to learn about your rights under the new 2026 legal standards.