Understanding Florida’s Wrongful Death Act
Understanding Florida’s Wrongful Death Act can seem daunting. In this article, we break down the statute to help you understand it better.
Recovering under Florida’s Wrongful Death Statute
Losing a loved one is always difficult. When that loss is the result of negligent acts of others, additional concerns must be taken into account. Florida‘s Wrongful Death Act governs how such claims are made. It also governs what can be recovered. In addition, families often have to contend with a much shorter period of time to bring a wrongful death claim – or risk the wrongful death claim being barred forever.
What is a Wrongful Death Claim?
A wrongful death claim is brought by family members of the deceased. It holds a negligent party accountable for the death they are responsible for. Why do family members have to bring this claim? Simply stated, Florida requires it. The dead cannot bring claims for the events that caused their death. Florida law outlines who can recover for the wrongful death of a family member and how such a recovery is made.
Florida Statutes Sections 768.16 – 768.26 are known as the Wrongful Death Act. These outline who can bring a wrongful death claim in Florida and what can be recovered. Below are some statutes relevant to Florida Wrongful Death claims.
Florida Statute Section 768.19. This statute provides that when the death of a person is caused by the wrongful act, negligence, default or breach of contract or warranty of any person, that the person who caused the death is liable for the damages caused.
Florida Statute Section 768.20. This statute provides an action for wrongful death shall be brought by the personal representative of the decedent’s estate. The personal representative has the authority to recover all damages for the benefit of the survivors and the estate.
Florida Statute Section 768.21. This statute outlines who may recover under the Florida’s Wrongful Death Act. Damages for the wrongful death of a loved one are limited. Some of those limitations are below:
- Each survivor may recover the value of lost support or services from the decedent’s injury to his or hear death, with interest, and future loss of support and services from the date of death and reduced to present value;
- Surviving spouses may also recover for the loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury;
- Minor children of the decedent may recover for lost of parental companionship instruction, and guidance and for pain and suffering from the date of injury;
- Adult children of the decedent may recover for lost of parental companionship instruction, and guidance and for pain and suffering from the date of injury, if there is no surviving spouse;
- Each parent of a deceased minor child may also recover for mental pain and suffering from the date of injury.
- Each parent of a deceased adult child may also recover for mental pain and suffering from the date of injury if there are no other survivors (such as spouse or children of the adult child);
- Medical or funeral expenses may be recovered by a survivor who paid them;
- Decedent’s personal representative may recover for the estate the loss of earnings;
- Decedent’s personal representative may recover for the estate the loss of prospective net accumulations 1) if the decedent’s survivors include a surviving spouse or lineal descendants; or 2) if the decedent is not a minor child, there are no lost support and services recoverable under section (1) of the Wrongful Death Act, and there is a surviving spouse.
Too many attorneys believe that the estate of the deceased can only recover damages for the parents, spouse and children of the deceased. This is not accurate and can result in the loss of significant damages in a wrongful death case.
As indicated above, the following individuals may have claims related to the decedent, depending on the unique facts of each case:
- Any Blood Relative
- Adoptive Brothers and Sisters
- Children Born Out of Wedlock
Why Do We Require Families to Bring These Claims So Quickly?
Florida requires wrongful death cases be brought within 2 years of the death of the person. If no claim for wrongful death is brought within 2 years of the decedent’s death, the claim may be barred forever. As such, if not brought within 2 years of death, the loved ones of the decedent may never be allowed to bring their claims.
What Types of Wrongful Death Cases Are There?
Car Accident Death
Car accidents which result in the death of someone can occur in a variety of ways – from being rear ended to be being struck head on. Death may occur instantly or may not occur until some time after the crash. Where the cause of the crash is disputed or uncertain, retention of experts may be necessary to assist with analysis of the crash data.
In these cases the investigation should begin immediately and evidence should be preserved.
Motorcycle Accident Death
Motorcycle accidents often result in serious injury or death. This is easy to understand when you think about a motorcyclist with little protection being struck by a several ton vehicle. These injuries are often gruesome. As with car accident deaths, if the cause of the crash is disputed or uncertain, retention of experts may be necessary to assist with analysis of the crash data.
Tractor Trailer Death
Accidents resulting in death involving tractor trailers, or 18 wheelers, often are the result of failing to adhere to company policy or guidelines or failure to pay attention. Tractor trailer drivers face enormous pressure to make deliveries on time and to make as many deliveries as possible. However, because of the inherent danger in their jobs (operating heavy trucks at high speeds and with incentive to get to their destination quickly), there are rules in place which dictate how much drive-time and downtime an operator must have.
Wrongful death as the result of a collision with a tractor trailer are more complex than the average attorney is aware. Valuable information can be lost without taking immediate action. Expert retention for various portions of the claim may be necessary.
Medical Malpractice Death
These cases can be the result of action or inaction. For instance, a doctor may fail to do something which would have saved a person’s life. A doctor may have also performed something negligently which resulted in someone’s death. These cases can be very complex and require the retention of experts.
Trip and Fall Death
Trip and Fall cases resulting in death typically focus on the two issues, 1) the negligence of the other party in causing the fall, and 2) the causation of death to the fall itself. These issues are generally very contested and significant investigation into the cause of the fall and contribution to death is required.
Slip and Fall Death
As with the trip and fall cases above, these cases typically focus on the two issues, 1) the negligence of the other party in causing the fall, and 2) the causation of death to the fall itself. These issues are generally very contested and significant investigation into the cause of the fall and contribution to death is required.
Negligent Security Death
These cases can occur in hotels, motels, night clubs, or any other establishment. The basis of the claim is that the premises owner and/or occupier failed to take reasonable security precautions which led to the death of a visitor to the property. These cases often require a lawsuit to obtain the documents necessary to assist with proving the property owner and/or occupier’s negligence. Oftentimes one can find that the failure to have the proper amount of security can be linked to the property owner and/or occupier’s desire to save money. However, prior to filing suit an preliminary investigation should be conducted in to the viability of the claim.
Faulty Products Death
These cases are often complex and result when a product is either designed inherently dangerous or has a manufacturing defect. These cases can result from a product tipping over and crushing someone to death, acting in a manner not expected, or any other variety of reasons. It is important that an investigation be immediately undertaken and that the product be preserved. If someone you know has died because of a faulty product, you should take immediate steps to preserve and protect that product from destruction and/or alteration.
Why You Need An Experienced Wrongful Death Attorney
Wrongful death cases are complex. They require significant investigation and evidence preservation. Too many attorneys treat wrongful death cases as any other case because they assume the at-fault party’s insurance company will pay a significant sum of money due to the death of a person. This is not the proper approach. Experience matters.
I have had the honor of assisting families in the following cases:
- Auto Accident Wrongful Death
- Tractor Trailer Wrongful Death
- Trip and Fall Wrongful Death
- Negligent Security Wrongful Death
- Faulty Products Wrongful Death
Evidence must be preserved, investigations into the facts of the incident and into the premises must be undertaken. An estate needs to be opened and the claim needs to be aggressively pursued. In addition, one needs to make sure they have found all responsible parties. Far too often attorneys do not dig for this information far enough and it may result in a significant loss to their client.
Contact Presser Law, P.A. Today For Your Free Wrongful Death Consultation
Speaking with an attorney following the death of a loved one is almost never at the top of a family member’s list. However, it is vitally important that you get Presser Law, P.A. involved immediately. At Presser Law, P.A., we can start the process of investigating the claim, preserving necessary evidence, hiring experts, opening an estate, and, ultimately, holding those responsible for their actions.
Contact our office today for a free wrongful death consultation. There are no fees or costs unless there is a recovery. Justin Presser, Esq. has had the honor of fighting for a number of families who have lost a loved one. We would be honored to fight for your family as well.
For more information or to speak with a lawyer about your legal rights following an injury, call 407.216.2000, email me at Justin@FindYourJustice.com.
Justin H. Presser is a car accident, personal injury and wrongful death attorney. Presser Law, P.A. is a Central Florida car accident and personal injury law firm located in Altamonte Springs. Proudly serving all injury victims throughout Central Florida including residents of Brevard County, Lake County, Orange County, Osceola County, Seminole County, and Volusia County.
Presser Law, P.A. is founded on the idea that injury victims deserve aggressive and straight forward representation to help them through some of their most difficult times. “Fighting for Justice. Fighting for You.” is more than a motto. It is our promise and reminder to our clients that we stand with them, fighting to ensure they receive the compensation they deserve.
Justin Presser - author
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