FAQTEXT-Wrongful Death

What is a wrongful death lawsuit?

Wrongful death lawsuits are brought by the family of a person who has died due to the deliberate, reckless, or negligent actions of another. The goal of this type of personal injury claim is to gain compensation for close relatives, in order to help defray medical costs and provide financial support. A wrongful death lawsuit may also seek damages for pain and suffering, lost wages, mental anguish, and loss of companionship or support for the surviving relatives. A wrongful death lawyer may attempt to ensure that the family’s emotional suffering is not augmented with unnecessary financial stress.

Who has the right to make the claims for a Wrongful Death?

In order to be certain that there is proper compensation for each survivor or beneficiary it is common for the governing statue to provide that a particular category of person has the right and responsibility.

In Florida, the statutes require that the Personal Representative of the Estate for the deceased bring any claim and assure that the interest of each survivor is protected. The Personal Representative is frequently a spouse or parent of the deceased.

In situations where no Estate is needed for probate purposes it is necessary to open an Estate to accomplish the appointment of a Personal Representative.

What are the possible claims for wrongful death in Florida?

In the case of a death due to somebody else's fault, which lawyers call "wrongful death", there are two basic kinds of money claims. These are economic damages and non-economic damages. Different rules apply to each kind. Economic damages are those things which have a value that can be measured in prices of things in the market place. Things like medical and funeral bills, and the cost of services. Non-Economic damages are things that don't have a market price, like pain and suffering.

Only certain relatives listed in the wrongful death statute can get any money for the loss of a loved one. These include the husband or wife of the deceased person, but not a fianc�, common law spouse, or ex-spouse, even if they have children with the deceased. The children of the deceased have a claim in most cases. The parents of the deceased have a claim in some cases.

Non-Economic Damages

Florida's law about what can be claimed is different from many other States. Many States allow the family to sue for the pain and suffering of the deceased. This is known as a "survival action". Florida law does not allow such a claim. It says: "When a personal injury to the decedent results in death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate." Florida Statutes Section 768.20 (2003).

On the other hand, Florida law allows the surviving spouse and children, or parents of deceased minor children to recover for their grief for the loss of their loved one. Florida Statutes Section 768.21 (2003). For the Florida wrongful death law, a "minor" is defined as a person under twenty five years of age. Many other States do not allow such a claim for bereavement.

This wrongful death law also provides that the surviving spouse may also recover for loss of the deceased spouse's companionship and protection. Minor children, and all children if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance. The damages recoverable by a minor child should be calculated based on the joint life expectancies of the minor child and the deceased parent, not just until the child is an adult. If a parent dies and is survived by a spouse and by a child younger than age 25 and a child 25 or older, the law causes an unfair result that allows the child under 25 to recover for a lifetime pain and suffering for the loss of the parent, while the other child only a few years older is entitled to no recovery at all.

Note: In lawsuits for wrongful death due to medical malpractice, non-economic damages shall not be recoverable by adult children or by parents of an adult child. Furthermore, if a medical malpractice case goes to arbitration, rather than to a court trial, different rules determine the amounts that can be recovered.

Economic Damages

Spouses, children, and parents in some cases, can recover the value of the support and services they no longer will receive from the deceased.

Medical or funeral expenses due to the decedent's injury or death may be recovered by whoever has paid them.

A claim may also be made for loss of earnings of the deceased from the date of injury to the date of death, less the amount claimed for lost support of survivors. Loss of future savings and gains from investments, which might reasonably have been expected but for the wrongful death, can be recovered in some cases by heirs.

Who may make a claim for wrongful death?

In Florida, before a claim can be made for the death of a relative, a petition must be filed in the probate court and the court must appoint a person, usually the next of kin, to be the "personal representative" of the deceased persons' estate. The personal representative is the only person who can hire the lawyer who is authorized to file a lawsuit against the wrongdoer.

"The action shall be brought by the decedent's personal representative, who shall recover for the benefit of the decedent's survivors and estate all damages, as specified in this act, caused by the injury resulting in death." Florida Statutes Section 768.21 (2003).

The survivors may have reason to be in conflict between them. For example, sometimes the person who died was married to one person and had children with another person who is raising the children. The spouse and the children are not living together and they have different losses and needs which have to be evaluated and presented. The personal representative must make claims for all of them. The court will appoint an unrelated person, called a "guardian ad litem", to review any proposed settlement and advise the court what is in the children's best interest. The guardian ad litem in death cases is usually a lawyer. If the lawsuit settles, the court must apportion how much each survivor receives. Sometimes it will be necessary for the survivors and the personal representative to be represented by different lawyers.

What if the deceased owed money to others?

The deceased person's debts cannot be recovered from wrongful death money recovered for the survivors. See Estate of Barton v. Poole, 631 So. 2d 315, 316 (Fla. 2d DCA 1994). When the case is settled, the money which is for the non-economic damages and the economic damages of the survivors is paid directly to the survivors. Only money received for economic damages of the estate, such as unpaid medical and funeral bills and loss of future savings and investment gains, is put into the probate court where creditors of the deceased can make claims against it.

However, laws and insurance contracts give special rights to repayment, called "liens", to some companies who paid medical bills or paid benefits to survivors. These liens are on all proceeds of a settlement, even the portion which is for the surviving relatives. Such liens include Medicare, Medicaid, health insurance, government hospital, and workers compensation benefits. But payments by automobile PIP and Med Pay insurance and life insurance proceeds do not have to be repaid.

What if the wrongdoer does not have enough insurance?

Many automobiles in Florida are uninsured, or have a very low amount of insurance. Also many doctors and lawyers are not insured for malpractice. By law, all city, county and state agencies, and their employees, are only liable for injuries and death up to $100,000 per person, $200,000 per accident. In the case of death or serious personal injury, there often is not enough insurance. Suing a person who does not have enough insurance is usually a waste of time and money in Florida. This is because Florida has laws which make it easy for people to protect their assets from forced sale in the event of a big judgment against them. Property in joint names with a spouse, a person's home, leased automobiles, retirement plan investments, cash value life insurance and annuities, and other special investments are exempt from the claim of a personal injury or wrongful death lawsuit. Wages of the head of a household are partially protected. Even people who live very well are very difficult to collect from. Wage earning people are never able to pay a large judgment.

Who should start the investigation of a potential Wrongful Death claim?

Any person who believes he or she may be a survivor or beneficiary entitled to compensation because of a wrongful death would have the right to consider starting the investigation of a potential claim. Sometimes the most logical person to investigate or start a claim, such as a widow, is not willing or able to look into the matter. In such a situation, any survivor or beneficiary should contact an attorney experienced in handling serious injury or wrongful death claims. The attorney can ascertain whether the claim would have merit and what categories of compensation would be permitted under the law. He or she would also be able to determine who should be appointed as Personal Representative of the Estate of the deceased if the Estate has not been previously opened.