What Is A Wrongful Death Claim Under Florida State Law?
Wrongful death is death caused by some form of negligence, whether it be malpractice, an injury by a defective product, an auto crash, or any other form of crash.
Who Can Legally Bring About A Wrongful Death Lawsuit Under Florida Law?
Please see below the current Florida Statute (768.21) on Wrongful Death. The law is quite complex and governed by this Statute as well as pertinent case law.
- The 2019 Florida Statutes
- Title XLV
- Chapter 768
- View Entire Chapter
768.21 Damages.—All potential beneficiaries of a recovery for wrongful death, including the decedent’s estate, shall be identified in the complaint, and their relationships to the decedent shall be alleged. Damages may be awarded as follows:
(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).
History.—s. 1, ch. 72-35; s. 2, ch. 81-183; s. 1, ch. 85-260; s. 2, ch. 90-14; s. 1169, ch. 97-102; s. 1, ch. 2002-44; s. 66, ch. 2003-416.
In Florida, you can only bring a lawsuit through an appointed personal representative. You have to have an estate set up and a personal representative appointed for the estate, and that is the person who brings the wrongful death case. Many times, the surviving spouse is the personal representative.
What Damages Are Survivors Potentially Entitled To In A Wrongful Death Claim?
The operative Statute is above in text but I will try to give an “overview’ as best I can.
In the case of a spouse, you can ask to recover for mental pain and suffering from the injury date and loss of companionship and protection for the loss of the spouse. If you’re 30 years old and you had the potential to live together for 40 more years, it is 40 years of mental anguish Minor children and all children if no spouse survives may also recover for loss of parental companionship, guidance, and instruction. ”Minor children” as survivors must be under 25. The law also supports the lost accumulation of income, funeral expenses, and last expenses. These are all elements of damages for a spouse. For a child, the parents can obtain losses for the mental anguish of the loss of the child. In medical malpractice cases, paragraph 8 severely limits recovery by adult children and damages by a parent for loss of an adult child. If there are stepchildren or half children, it depends on their legal status. Other people who were dependent upon the loved one for support and maintenance can also potentially recover.
How Is The Amount Of Damages Determined In A Wrongful Death Claim?
The amount of damages awarded is decided by the jury. The more evidence you can present to a jury, the better. Sometimes, the judge will rule that certain evidence is inflammatory, meaning the value is outweighed by the emotional impact. These decisions can greatly impact the jury’s decision. The reality is that the life of someone who was a drunk his entire life and beat his wife regularly is not going to get the same damages as someone who was a loving husband and a great father.
What Is The Statute of Limitations For Filing A Wrongful Death Claim In Florida?
In most wrongful death cases, the statute of limitations is two years. If it’s a wrongful death claim in malpractice, it can extend to over two years as explained in the previous explanation of malpractice claims.