FLORIDA WRONGFUL DEATH

Car crashes, motorcycle accidents, medical malpractice, and other tragic events that form the basis of many personal injury lawsuits in Florida.  Where death is involved, they usually include the filing of a claim for damages resulting from the victim’s wrongful death against the negligent person.   Damages based upon wrongful death can include a wide variety of things, from seeking reimbursement for funeral expenses to the long-term loss of parental guidance and support for the decedent’s children.

Wrongful death litigation can be complicated.  Calculating the monetary damages, including estimating the number of years the decedent otherwise would have lived, is difficult.  Determining what individuals are the proper parties in the wrongful death lawsuit can also be problematic.  For example, a personal representative is the person authorized to file a lawsuit in a wrongful death case.  But who is the proper personal representative?  Sometimes a surviving spouse from a second marriage will file a wrongful death lawsuit and not include the correct beneficiaries. Other times a dispute will exist as to who will serve as the personal representative and thus who will control the decisions and the money from any award of the wrongful death lawsuit.

In an attempt to insure justice when someone’s life has been taken due to the wrongful act of another, specific statutes have been established in the State of Florida.  The Florida law regarding wrongful death has been entitled “the Florida’s Wrongful Death Act” by the Florida legislature, and the Act itself can be found as part of the Florida statutes, in Sections 768.16-768.26 of the Florida statutes’ chapter dealing with Negligence.

Those who may sue under the Florida Wrongful Death Act for compensation under its tenets are defined in the Act as “survivors” under Section 768.20 and are limited to the following people:

  • the decedent’s spouse;
  • the decedent’s children born of a marriage;
  • a decedent mother’s children born out of wedlock;
  • a decedent father’s children born out of wedlock if the father, prior to his death, recognized a responsibility for the child’s support;
  • the decedent’s parents;
  • any blood relatives partly or wholly dependent on the decedent for support or services;
  • any adoptive brothers and sisters partly or wholly dependent on the decedent for support or services.

What monetary awards are available under the Wrongful Death Act have been detailed in the law, as follows (in Section 768.21):

(1)  Each survivor may recover the value of lost support and services from the date of the decedent’s injury to her or his death, with interest, and future loss of support and services from the date of death and reduced to present value. In evaluating loss of support and services, the survivor’s relationship to the decedent, the amount of the decedent’s probable net income available for distribution to the particular survivor, and the replacement value of the decedent’s services to the survivor may be considered. In computing the duration of future losses, the joint life expectancies of the survivor and the decedent and the period of minority, in the case of healthy minor children, may be considered.

(2)  The surviving spouse may also recover for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury.

(3)  Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury. For the purposes of this subsection, if both spouses die within 30 days of one another as a result of the same wrongful act or series of acts arising out of the same incident, each spouse is considered to have been predeceased by the other.

(4)  Each parent of a deceased minor child may also recover for mental pain and suffering from the date of injury. Each parent of an adult child may also recover for mental pain and suffering if there are no other survivors.

(5)  Medical or funeral expenses due to the decedent’s injury or death may be recovered by a survivor who has paid them.

(6)  The decedent’s personal representative may recover for the decedent’s estate the following:

(a)  Loss of earnings of the deceased from the date of injury to the date of death, less lost support of survivors excluding contributions in kind, with interest. Loss of the prospective net accumulations of an estate, which might reasonably have been expected but for the wrongful death, reduced to present money value, may also be recovered:

1.  If the decedent’s survivors include a surviving spouse or lineal descendants; or

2.  If the decedent is not a minor child as defined in s. 768.18(2), there are no lost support and services recoverable under subsection (1), and there is a surviving parent.

(b)  Medical or funeral expenses due to the decedent’s injury or death that have become a charge against her or his estate or that were paid by or on behalf of decedent, excluding amounts recoverable under subsection (5).

(c)  Evidence of remarriage of the decedent’s spouse is admissible.

(7)  All awards for the decedent’s estate are subject to the claims of creditors who have complied with the requirements of probate law concerning claims.

(8)  The damages specified in subsection (3) shall not be recoverable by adult children and the damages specified in subsection (4) shall not be recoverable by parents of an adult child with respect to claims for medical negligence as defined by s. 766.106(1).

The attorneys at Adrian Philip Thomas, P.A. do not handle Florida Wrongful Death actions; however, we can refer you to an attorney who does and we can open probate and represent the Personal Representative (executor) who is required to be appointed to maintain the wrongful death law suit.  If you have a  Florida Wrongful Death law suit, please contact the attorneys at Adrian Philip Thomas, P.A. for a free initial consultation.

 

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