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Wrongful Death Claims in Florida

coffin.jpgOur firm was recently hired by the personal representative of an Estate of an individual that died as a result of a very unfortunate accident at a local resort. As a result, the Estate’s personal representative of the deceased individual asked us what type of compensation the Estate is entitled to receive.

The answer to that question is actually found in Florida’s Wrongful Death Act. That Act was drafted by Florida’s legislature and can be found at Fla. Stat. § 768.16 through § 768.26.

Section 768.19 sets forth the right of action for wrongful death. Section 768.19 states as follows:

When the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, including those occurring on navigable waters, and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued, the person or water craft that would have been liable in damages if death had not ensued shall be liable for damages as specified in this act notwithstanding the death of the person injured……

Who May Bring Action for Wrongful Death?

A cause of action for wrongful death “shall be brought by the decedent’s personal representative.” F.S. 768.20. To eliminate the possibility of a multiplicity of suits and a race to judgment, the personal representative of the decedent is the only party qualified to commence a wrongful death action in Florida. Williams v. Infinity Insurance Co., 745 So. 2d 573 (Fla. 5th DCA 1999). The criteria for establishing who may qualify as the personal representative are set forth in F.S. 733.301-733.305.

If the personal representative fails to qualify or in some way may be disqualified, any settlement with an improperly qualified personal representative may be set aside by the duly qualified personal representative. This could subject the defendant to two actions. Therefore, counsel should insist on a certified copy of the letters of administration or their equivalent. Such documentation exists in our case and has been provided to us by the Plaintiffs’ counsel.

Who is Entitled to Recover Under Wrongful Death Act?

The Act limits recovery to “survivors”, as that term is defined under the Act. Section 768.18(1) specifically defines the classes of persons who qualify as “survivors” and whom are, therefore, entitled to recover some or all of the damages set forth in Section 768.21. Survivors includes:

—–
EXTENDED BODY:
(a) decedent’s spouse
(b) children
(c) parents (of a deceased minor or adult child)
(d) any “dependent” blood relatives and adopted brothers and sisters,
(e) child born out of wedlock of a mother
(f) child born out of wedlock of a father (if the father has recognized responsibility for the child’s support).

Spouses, children, and parents of deceased minor children are always deemed “survivors”, and, therefore, may recover damages under the Act (Note: a “minor child” for purposes of the Act is defined as a person under 25 – Section 768.18(2)). All other prospective survivors, however, must establish dependency on the decedent in order to recover under the Act. In other words, establishing dependency is essential for recovery by survivors other than a spouse, child, or parent of a deceased minor.

Therefore, the question of dependency is a critical issue in wrongful death cases as it will determine whether a prospective survivor ultimately can recover under the Act. Whether a prospective survivor is dependent partially or wholly on the decedent for support or services, thus qualifying the survivor for a claim under the Act, is strictly an issue of fact for the jury. Further, the status of dependency under the Act is determinable by factual circumstances existing at death. Wadsworth v. Friend, 201 So. 2d 641 (Fla. 4th DCA 1967).

Damages Recoverable Under Act

Section 768.21 sets forth the damages available to survivors under the Act. The statute lays out different kinds of damages which may be awarded to various survivors. The following sets forth the kinds of damages available and who is entitled to such damages:

(a) Lost Support and Services: Section 768.21(1) provides that “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.”

Determining the monetary value of lost support and services must include consideration of 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. In computing the duration of future losses, the joint life expectancies of the survivor and the decedent must be considered. Section 768.21(1).

Damages for loss of support and services for the parents of a deceased child are limited to the support and services that the parents would have received between the time of the child’s death and the age of majority. Roberts v. Holloway, 581 So. 2d 619 (Fla. 4th DCA 1991). This limitation is not applicable to the parents’ claim of mental pain and suffering. Damages for a very young child may not be available because the costs attributable to providing for the child until majority outweigh any services that the child may have provided. Grayson v. United States, 748 F. Supp. 854 (S.D. Fla. 1990).

(b) Mental Pain and Suffering: Damages are not recoverable for the decedent’s pain and suffering between injury and death, but certain survivors may recover for their own mental pain and suffering. Florida Clarklift, Inc. v. Reutimann, 323 So. 2d 640 (Fla. 2d DCA 1976). The following survivors may recover for their own mental pain and suffering:

1. Surviving spouse (768.21(2))
2. Minor children (768.21(3))
3. Parents of deceased minor children (768.21(4))
4. Adult children (if there is no surviving spouse) (768.21(3))
5. Parents of deceased adult child (if there are no other survivors) (768.21(4))

Evidence of domestic discord is admissible to mitigate pain and suffering claims. Adkins v. Seaboard Coast Line Railroad Co., 351 So. 2d 1088 (Fla. 2d DCA 1977).

(c) Loss of Companionship, Protection, Instruction and Guidance: The surviving spouse may recover for loss of the decedent’s companionship and protection. F.S. 768.21(2). A decedent’s minor children, and adult children if there is no surviving spouse, may recover for lost parental companionship, instruction, and guidance. F.S. 768.21(3).

(d) Medical or Funeral Expenses: Any survivor who has paid medical or funeral expenses incurred as a result of the decedent’s injury or death may recover for those items. F.S. 768.21(5).

(e) Recovery By PR of Estate: Although the decedent’s estate is not identified as a “survivor”, F.S. 768.21(6) entitles the personal representative to recover certain damages and costs for the estate, as follows:

1. Lost Earnings: The PR may recover for the decedent’s estate “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. F.S. 768.21(6)(a).

2. Net Accumulations. The PR may recover on behalf of the estate 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 when: (a) the decedent’s survivors include either a lineal descendant or a surviving spouse; or (b) the decedent is not a minor child, there are no lost support and services recoverable under Section 768.21(1), and there is a surviving parent.

“Net accumulations” is defined in Section 768.18(5) and is essentially a decedent’s projected earnings based on his or her propensity to both earn and save as well as the decedent’s subjective personality traits. The damages are to represent what the decedent would have earned in a normal projected lifetime and would have had available for inclusion in his or her estate. Projected taxes, the decedent’s personal expenses, and the support of survivors must be deducted from the decedent’s “net business or salary income” to calculate net accumulations. Smyer v. Gaines, 332 So. 2d 655 (Fla. 1st DCA 1976).

3. Medical and Funeral Expenses: The PR may recover for the estate all medical or funeral expenses paid by the estate, excluding those paid and recovered by a particular survivor under F.S. 768.21(5). F.S. 768.21(6)(b). There are no identifiable medical expenses in our case. However, there are funeral expenses which will be discussed below.

(f) Punitive Damages: Punitive damages are recoverable in wrongful death actions based on the punitive damages statute. F.S. 768.72.

Miscellaneous Issues:

(a) Minors and Incompetents: Section 768.23 provides that the court shall provide protection for any amount awarded for the benefit of a minor child or an incompetent pursuant to the Florida Guardianship Law. Court approval is required for settlements involving the interests and assets of minor children and incompetents. F.S. 768.25.

(b) Litigation Expenses: Section 768.26 provides that attorneys’ fees and expenses incurred in bringing a wrongful death action are to be paid by the PR and deducted proportionately from the awards of the estate and survivors. The Act does not provide a statutory entitlement to recover prevailing party attorneys’ fees.

Survivor Recovery Chart

Class of Survivor Damages Recoverable

1. Surviving Spouse (a) Loss of Support from date of injury to death, with interest;
(b) Future loss of support and services from date of death, reduced to present value;
(c) Loss of decedent’s companionship and protection;
(d) Mental Pain and suffering from date of injury; and,
(e) Loss of net accumulations beyond death, reduced to present value (claim brought by PR of estate)

2. Minor Children Damages recoverable are same as surviving spouse, plus loss of parental companionship, instruction, and guidance.

3. Adult Children (a) Loss of Support from date of injury to death, with interest;
(b) future loss of support and services from date of death, reduced to present value;
(c) Loss of parental companionship, instruction and guidance if no surviving spouse;
(d) mental pain and suffering from date of injury if no surviving spouse.
NOTE: Damages described in (b) and (c) are not recoverable by adult children in medical malpractice actions.

4. Parents of Minor Children (a) Loss of Support from date of Injury to death, with interest;
(b) Future loss of support and services from date of death, reduced to present value; and,
(c) Mental pain and suffering from date of injury.

5. Parents of Adult Children (a) Loss of Support from date of injury to date of death, with interest;
(b) Future Loss of support and services from date of death, reduced to present value; and,
(c) Mental pain and suffering from date of injury if no other survivors.
NOTE: Damages for mental pain and suffering are not available in medical malpractice actions.

6. Dependent Blood Relatives (a) Loss of Support from date of injury to date of death, with interest;
(b) Future loss of support and services from date of death, reduced to present value

7. Decedent’s Estate (a) Loss of earnings from date of injury to death, less lost support of survivors excluding contributions in kind, with interest;
(b) Loss of net accumulations beyond death, reduced to present value if (a) there is surviving spouse or lineal descendant, or (b) the decedent is not minor child, no lost support and services are recoverable, and there is a surviving parent; and,
(c) medical or funeral expenses because of decedent’s injury that are charged on the estate, reduced by amounts recoverable by third party.

Our firm handles wrongful death claims on a daily basis. We represented the insurance companies for years so we know all of their tricks as it relates to wrongful death claims. And we’re ready to use what we learned defending the insurance companies for your benefit. Therefore, call us today to discuss your case in greater detail because our law firm provides legal representation to Personal Representatives of Estates that were opened to pursue the wrongful death claim. Contact us today for a free consultation.