concurring in part and dissenting in part.
I concur in part and dissent in part. I agree with the majority in declining on this record to recognize pre-impact fear as an element of damages in a survival action. However, in my view, reallocation of a plaintiffs settlement agreement from one cause of action to another is not warranted. Thus, I would reverse the circuit court’s reallocation of the settlement agreement that was set off in full against Rutland’s judgment against SCDOT on this wrongful death action.
Wrongful death and survival actions are different claims for different injuries. Bennett v. Spartanburg Railway, Gas & Electric Co., 97 S.C. 27, 29-30, 81 S.E. 189, 189-90 (1914). In a wrongful death action, damages are for the benefit of the statutory heirs, and no damages are allowed for injuries to the decedent. See id. Evidence going only to the issue of the decedent’s pain and suffering would be irrelevant and prejudicial and should not be admitted in an action only for wrongful death. In this case, Rutland sued SCDOT only on a wrongful death claim. Thus, it is hardly surprising that the record contains little evidence on the issue of the decedent’s preimpact fear.5
Prior to trial, Rutland settled his claims against GM and the at-fault driver, allocating a greater proportion of the proceeds *219to the wrongful death than to the survival action. Following trial, at which only a wrongful death action was tried against the remaining defendant, SCDOT, the circuit court granted SCDOT’s motion to have the settlement proceeds reallocated wholly to the wrongful death action. The resulting setoff extinguished the entire judgment against SCDOT.
In my view, reallocation of the settlement proceeds was improper. In approving reallocation, the majority relies on Welch v. Epstein, 342 S.C. 279, 536 S.E.2d 408 (Ct.App.2000). The Welch court recognized the rule that “the reduction in the [plaintiffs] judgment must be from a settlement for the same cause of action.” Welch, 342 S.C. at 313, 536 S.E.2d at 425. It nonetheless proceeded to expand this accepted setoff principle to allow a court to disregard a plaintiffs pre-trial settlement agreement with a different tortfeasor and reallocate the settlement monies among various causes of action. Nothing in our precedents supports such a reallocation. I would overrule Welch to the extent it authorizes reallocation of settlement proceeds among different causes of action.6
Moreover, in my view equity is not served by a court’s revision of a settlement agreement between the plaintiff and another tortfeasor. First, doing so essentially requires a plaintiff to defend to the court the viability of a claim she has not made. In my view, such a procedure violates the settled rule that the plaintiff may choose her defendant. See Chester v. South Carolina Dept. of Public Safety, 388 S.C. 343, 345-46, 698 S.E.2d 559, 560 (2010) (refusing to find the “firmly entrenched common law principle” of plaintiffs sole right to choose her defendant abrogated by the Tort Claims Act even when the result was to make a nonsettling defendant liable for a greater share of the damages).
Reallocating a settlement agreement may also inequitably reduce a plaintiffs recovery against at-fault defendants. See McDermott, Inc. v. AmClyde, 511 U.S. 202, 212-21, 114 S.Ct. 1461, 128 L.Ed.2d 148 (1994), and sources cited therein (dis*220cussing possible inequities of setting off judgment by full amount of settlement rather than requiring a nonsettling defendant to pay its proportionate share of damages). This case serves as an example, in that the jury’s verdict represented only its determination of the wrongful death damages to the decedent’s family and not her own survival damages. It is impossible to divine from that verdict what verdict a jury would have returned on the decedent’s own damages in a survival action, had one been brought.
The circuit court’s ex post analysis also benefits from hindsight and disregards a variety of legitimate bases for the parties’ ex ante decisions. See McDermott, supra. For example, the parties to the settlement agreement were able to bargain on the settlement amount in light of the unsettled law regarding pre-impact fear as an element of damages in a survival action.
Further, the result of reallocation in this case is that SCDOT, an at-fault defendant, is exempted from any payment to the decedent’s statutory heirs. I see no equity in this result. See Chester, supra; McDermott, 511 U.S. at 219, 114 S.Ct. 1461 (“The law contains no rigid rule against overcompensation [of the plaintiff]. Several doctrines, such as the collateral benefits rule, recognize that making tortfeasors pay for the damage they cause can be more important than preventing overcompensation.”). Finally, the unfortunate effect of reallocation in a case such as this, where there is no suggestion of fraud or other wrongdoing by the plaintiff, is to discourage plaintiffs from settling and encourage joint tortfeasors to litigate, contrary to our strong public policy favoring settlement. See Chester, 388 S.C. at 346, 698 S.E.2d at 560.
Thus, in my view, the trial court erred when it reallocated the settlement. I therefore respectfully dissent from that portion of the majority opinion approving reallocation of the settlement in favor of SCDOT.
. In Welch v. Epstein, 342 S.C. 279, 536 S.E.2d 408 (Ct.App.2000), discussed infra, both the wrongful death and survival actions were tried.
. The majority places weight on the fact that Rutland and SCDOT were aware of the possibility of reallocation. I find this fact both unsurprising in light of the existence of Welch and irrelevant to my analysis. SCDOT was not a party to the settlement agreement between Rutland and GM, and the circuit court properly emphasized that SCDOT was bound by none of its terms.