When a loved one passes away, filing paperwork is probably the last thing on your mind. However, a death can cause more than just emotional damage, it can cause financial damage. Filing a wrongful death claim could bring justice to the victim, as well as help ease your financial troubles.
What is a wrongful death case?
A wrongful death case exists when a person dies due to the legal fault of another person. Wrongful death claims involve all types of fatal accidents from simple car accidents to complicated product liability cases. Persons, companies, and governmental agencies can be legally at fault for acting negligently. Florida’s Wrongful Death Act is found at Section 768.16, Florida Statutes.
Wrongful death claims can result from any number of different facts situations grounded in negligence. For example, we have successfully represented the surviving adult children of a father who drowned in a boating accident. This was a products liability case in which the marine steering system failed, causing the boat steering to lock, throwing the deceased from the boat. We claimed negligence against all the parties in the chain of commerce, including the retailer, and the manufacture. Another example is the death of a husband and father due to the negligence of his nursing home. We successfully recovered for his surviving wife and adult children, against the medical staff and nursing home company.
Who can file a wrongful death claim?
Section 768.18, Florida Statutes, defines “survivors” as the decedent’s spouse, children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It includes a child born out of wedlock of a mother, but not the child born out of wedlock of the father unless the father has recognized a responsibility for the child’s support. Minor children are defined as children under 25 years of age.
A wrongful death claim must be filed by a personal representative on behalf of the survivors who suffer damage from the decedent’s death. Those who suffer damage after the death are called “real parties in interest.”
What is the Statute of Limitations for a wrongful death claim in Florida?
Section 95.11, Florida Statutes, provides that a survivor has only two years from the date of the death to file the wrongful death case, or it is forever barred.
What are the damages that can be recovered in a claim for wrongful death?
Section 768.21, Florida Statutes, provides for certain surviving family members to receive compensation for loss of the deceased’s economic support and emotional companionship, mental pain and suffering, medical expenses and funeral costs. Minor children may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering. Each parent of a deceased minor child may also recover for mental pain and suffering.
“Net accumulations,” defined at Section 768.18, Florida Statutes, means the part of the decedent’s expected net business or salary income, including pension benefits that the decedent probably would have retained as savings and left as part of her or his estate if the decedent had lived her or his normal life expectancy. “Net business or salary income” is the part of the decedent’s probable gross income after taxes, excluding income from investments continuing beyond death that remains after deducting the decedent’s personal expenses and support of survivors, excluding contributions in kind.
Why Do I Need a Wrongful Death Lawyer?
Wrongful death claims are treated differently from other negligence cases in Florida. The following are examples of some of the unique issues inherent in Florida wrongful death claims:
- It is necessary to prove that the death was caused by the misconduct of another person or company. This can be complicated at times when other potential causes are present. An example would be the seriously ill person who is given improper medication in the hospital. In that circumstance, the defense often argues that the death was really just the natural progression of the underlying disease or condition.
- It is always necessary to prove the life expectancy of the deceased in order to determine what their future losses would be. This is not a major problem if the deceased was in perfect health at the time of the misconduct. But, it becomes complicated if the deceased had a life-threatening or life-shortening disease or condition.
- It is likewise necessary to prove the life expectancy of each survivor or beneficiary. After all, the future relationship would only have existed during the period of the joint life expectancy of the deceased and the survivor.
- The nature of the relationship between the deceased and the survivor, in all of its relevant aspects, must be fully developed and presented. Sometimes the relationship is almost storybook perfect and sometimes it is quite different. In either event, it needs to be understood and documented in order to support the individual claim of the survivor.
- If a survivor dies before a judgment in a wrongful death claim, the recovery for that now deceased survivor is limited to the lost support and services to the date of his or her death. The personal representative shall pay the amount recovered to the personal representative of the deceased survivor.
- Much of the true loss in a wrongful death claim is non-economic or emotional in nature. This requires special skills and care in the development of the proof and in its presentation. It is a matter that is quite different from just permitting an injured person to describe his or her back pain.
- It is mandatory that each of the survivor’s claims be developed and presented fairly without favoring or appearing to favor one survivor over another. This is especially true in those situations where, for example, the widow is the personal representative of the estate of the deceased with the responsibility to present a claim on her own behalf and another claim on behalf of a stepchild. There are many other situations that require a special effort be made to assure a fair process at every step of the claim for each survivor. Hopefully you’ll never have to file a wrongful death claim, but if in the unfortunate case you do, hiring an attorney will give you the greatest chance of receiving the most compensation.
Learn more about what to look for when hiring an attorney, or call 813-915-1110 for your free, no obligation telephone conversation directly with attorney Mike Hancock. If we don’t recover money for your case, you don’t pay us. Our phones are answered 24/7, or feel free to reach us by email.