Florida Wrongful Death Lawyer

Wrongful Death-FAQs

What are the Elements of the prima facie case of wrongful death?

In Florida, a cause of action for a wrongful death did not exist at common law.  The Florida Wrongful Death Act, Fla. Stat. §§ 768.16 to 768.26, creates a statutory cause of action.  In a wrongful death action, a plaintiff must allege and prove the following elements:

(1) the existence of a legal duty owed to the decedent;

AND

(2) breach of that duty;

AND

(3) legal or proximate cause of death was that breach;

AND

(4) consequential damages.

When does the tight of a wrongful death action accrue?

When a person’s death is caused by an intentional act, negligence, default, or breach of contract or warranty, including those that occur on navigable waters.

Who are the Parties to a wrongful death case?

The personal representative of the deceased shall bring the action, seeking damages for the benefit of the deceased’s survivors and estate, that resulted from the injury leading to death.  § 768.21 outlines the process for identifying potential beneficiaries of a wrongful death recovery, including the decedent’s estate. The complaint must specify these beneficiaries and their relationships to the deceased.

What damages are available in wrongful death cases?

Damages can be awarded in several ways:

(1) Survivors can recover the value of lost support and services from the date of the decedent’s injury until their death, with interest. They can also recover future loss of support and services reduced to present value. To calculate loss of support and services, the court considers the survivor’s relationship to the deceased, the amount of the deceased’s probable net income available for distribution to the survivor, and the replacement value of the deceased’s services to the survivor. The duration of future losses is determined by the joint life expectancies of the survivor and the deceased, as well as the period of minority for healthy minor children.

(2) The surviving spouse can recover for loss of companionship and protection, as well as mental pain and suffering, from the date of the injury.

(3) Minor children of the deceased and all children of the deceased if there is no surviving spouse can recover for lost parental companionship, instruction, and guidance, as well as mental pain and suffering, from the date of the injury. For the purposes of this subsection, if both spouses die within 30 days of each other due to the same wrongful act or series of acts arising from the same incident, each spouse is considered to have predeceased the other.

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

(5) Survivors who have paid medical or funeral expenses due to the decedent’s injury or death can recover those expenses.

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

(a) The deceased’s earnings from the date of injury until death, minus the lost support provided by survivors (excluding in-kind contributions and interest), may be recovered. Additionally, the prospective net accumulations of the estate, which could reasonably have been expected but for the wrongful death, can be reduced to their present value and recovered.

1. This applies if the deceased’s survivors include a surviving spouse or lineal descendants.

2. If the deceased is not a minor child as defined in Florida Statute § 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 incurred due to the deceased’s injury or death that have become a charge against their estate or were paid by or on behalf of the deceased, excluding amounts recoverable under subsection (5), may be recovered.

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

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

(8) The damages specified in subsection (3) are not recoverable by adult children. The damages specified in subsection (4) are not recoverable by parents of an adult child with respect to claims for medical negligence as defined in Florida Statute § 766.106(1).

Court approval of settlements in Necessary 

Pursuant to § 768.25. while an action under this act is pending, no settlement as to amount or apportionment among the beneficiaries which is objected to by any survivor or which affects a survivor who is a minor or an incompetent shall be effective unless approved by the court.

Who pays for the Litigation Expenses?

Under section 768.26, the personal representative will cover the attorneys’ fees and other litigation-related expenses. These expenses will be subtracted from the awards granted to the survivors and the estate. The deduction amount will be determined by the individual awards. Nevertheless, if specific expenses are incurred to benefit a particular survivor or the estate, those expenses will be paid out of their respective awards.

Action for Wrongful Death vs. Action for Negligence

Even though a wrongful death can result from negligence, Florida law distinguishes between an action under its wrongful death act and a claim of negligence.

The personal injury cause of action for negligence is rooted in common law, while the cause of action for wrongful death is provided by statute (§ 768.19, Fla.Stat.). Notably, the negligence action requires a personal injury but not necessarily a death, whereas the wrongful death action requires a death but not necessarily one caused by negligence.

Key differences lie in the accrual of damages. The negligence action accrues at the time of the negligent act, while the wrongful death action accrues at the time of the death. Additionally, the negligence action favors the person injured, while the wrongful death action favors the decedent’s estate and statutorily designated survivors.

Furthermore, the measure of damages in a personal injury negligence action differs from the damages provided by section 768.21, Florida Statutes, for a wrongful death. In essence, both causes of action cannot coexist simultaneously because the cause of action for wrongful death does not accrue until the death itself, which effectively extinguishes the personal injury cause of action that previously existed in favor of the negligently injured person. 

Call a South Florida Wrongful Death Lawyer

Contact South Florida wrongful death lawyer Andrew J. Pascale, at 877-667-1211 today if you need representation and let his experience help you. Andrew is not afraid to bring on the top lawyers in their field to assist you.  This blog does not constitute legal advice and is for illustrative purposes only.