There are few things as tragic as a human life ending due to an accident, but when the death happens because of someone else's negligence, you will want justice. For many surviving family members in South Florida, the only way to make responsible parties atone for their negligence is via a wrongful death civil suit.
Unfortunately, not all accidental deaths are actionable through the courts. Read more to learn about whether your loved one's fatal accident qualifies for a wrongful death lawsuit in the Florida courts.
Elements of a Wrongful Death Lawsuit
For a personal injury lawyer to successfully pursue a wrongful death claim on behalf of their clients, they must be able to establish these elements:
- An individual or individuals have died.
- Another party caused the death(s).
- The actions that caused the death were either intentional or the result of negligence.
- There are survivors of the deceased who have standing.
- There was a monetary loss as a result of the death.
For example, a wife is fatally struck by a drunk driver who ran a red light. Her spouse would be able to bring forward a wrongful death suit because the defendant's negligence caused her death. Additionally, the death would presumably cause a significant monetary impact on the family. As a married person, the deceased's spouse would have standing in the state of Florida.
If your case meets these five elements, you could be entitled to damages. Contact a wrongful death attorney in South Florida to discuss your claim.
How a Wrongful Death Lawsuit Works
From a legal standpoint, wrongful death actions in Florida work like other personal injury cases. A wrongful death attorney works on a contingency basis, which means that all of your legal consultations are free. The attorney receives payment when they successfully settle or litigate the case. There are, however, some differences between personal injury cases and wrongful death suits.
The Personal Representative
In most personal injury cases, the injured party is also the plaintiff. That's not possible in a wrongful death case. In some states, a family member or loved one can file the suit, but in Florida, a wrongful death suit is filed through the personal representative of the deceased's estate. The personal representative is responsible for listing any individuals who have a legal interest in the estate.
Establishing Standing
"Survivor" is a defined term, and the definition is closed. Under Fla. Stat. 768.18(1), the survivors of a Florida wrongful death are:
- The decedent's spouse
- The decedent's children, of any age. Section 768.18(2) treats children under 25 as minor children for this act, whatever the age of majority is elsewhere
- The decedent's parents
- Any blood relative, and any adoptive brother or sister, who was partly or wholly dependent on the decedent for support or services
An unmarried partner is not on that list, however long the relationship ran and however dependent the partner was, unless the partner also happens to be a blood relative. A stepchild who was never adopted is not on it either. Section 768.18(1) does include the child born out of wedlock of a mother, and the child born out of wedlock of a father where the father recognized a responsibility for the child's support.
Statute of Limitations
A Florida wrongful death suit must be filed within two years of the date of death, under Fla. Stat. 95.11(5)(e). An ordinary negligence claim now runs two years as well, from the date of the accident, under section 95.11(5)(a); it was four years until HB 837 (ch. 2023-15) cut it for causes of action accruing after March 24, 2023. What still separates the two is where the clock starts, and that matters when an accident victim dies days or weeks later. One exception sits outside the deadline altogether: section 95.11(11) allows a wrongful death action against a natural person for an intentional tort resulting in death under section 782.04 or section 782.07 to be brought at any time, with no arrest, charge or conviction required first.
Damages in Wrongful Death Lawsuits
The damages involved in wrongful death lawsuits are also different than with non-fatal personal injury action.
Economic Damages
The Wrongful Death Act sets out its own list of damages, and it is not the list from an ordinary injury case. Under Fla. Stat. 768.21, each survivor recovers the value of lost support and services from the date of the decedent's injury forward, with future losses reduced to present value. A survivor who paid the medical or funeral bills recovers those under section 768.21(5). The estate recovers the decedent's lost earnings from the date of injury to the date of death under section 768.21(6)(a), and, where the survivors include a spouse or lineal descendants, the net accumulations the estate would have gained. Damage to a vehicle or other property is a separate property claim and is not part of the wrongful death action.
Noneconomic Damages
The decedent's own pain and suffering is not recoverable. Section 768.20 abates the personal injury action on death, and Fla. Stat. 768.21 does not hand that claim to the estate. What survivors recover is their own mental pain and suffering from the date of injury. A surviving spouse recovers that plus loss of the decedent's companionship and protection under section 768.21(2). Minor children, and all children where there is no surviving spouse, recover lost parental companionship, instruction and guidance under section 768.21(3). Each parent of a deceased minor child recovers mental pain and suffering under section 768.21(4), and each parent of an adult child recovers it only where there are no other survivors.
Why You Should Pursue Damages in a Wrongful Death Lawsuit
Many people who have just experienced the death of a loved one are simply not ready to engage in a legal battle. While it's true that no amount of money can compensate you for the loss of a family member, by not pursuing a claim, you may be setting yourself up for future financial hardships. In the absence of criminal charges, a civil suit may be the only way for you to receive justice and hold the at-fault party accountable. A personal injury lawyer can champion your cause and take care of the legal aspects of your case while you grieve and work on recovering from your tragedy. It's important you don't wait, however. The statute of limitations for wrongful death suits is only two years from the date of death, so it's important to act quickly.
Frequently Asked Questions in Wrongful Death Suits
If you've lost a loved one due to violence or negligence, you should speak to an attorney. At Weinstein Legal Team, all consultations are free of charge, and you will never have to pay out-of-pocket to discuss your case.
Who Can File a Wrongful Death Lawsuit?
In Florida, a personal representative can file a lawsuit on behalf of the estate and the family members who have standing in the suit. If a personal representative isn't identified in a will, your attorney can assist you in having one appointed through the courts.
What If the Responsible Party Is Also Facing Criminal Charges?
If the wrongful death is the result of a crime that the defendant has to answer for, you may, in fact, have to wait until the criminal case is resolved before you can sue. That does not mean that you should wait to speak to a lawyer. It's important for your wrongful death attorney to be involved in the case as early as possible.
Are There Damage Caps in Florida?
Florida does not cap compensatory damages in a wrongful death suit. The noneconomic caps the Legislature once put on medical malpractice claims were struck down by the Florida Supreme Court, in Estate of McCall v. United States (2014) as applied to wrongful death and in North Broward Hospital District v. Kalitan (2017) as applied to personal injury.
When Are Punitive Damages Awarded in Wrongful Death Suits?
Punitive damages are rare, and two different sections govern them. Fla. Stat. 768.72(1) bars even pleading a punitive claim until there is a reasonable showing by evidence in the record, and section 768.72(2) then requires clear and convincing evidence that the defendant was personally guilty of intentional misconduct or gross negligence. The cap lives in Fla. Stat. 768.73: paragraph (1)(a) sets the usual ceiling at three times compensatory damages or $500,000, whichever is greater, paragraph (1)(b) raises it to four times or $2 million where the conduct was motivated solely by unreasonable financial gain known to a policymaker, and paragraph (1)(c) removes it where the defendant specifically intended to harm the claimant. Section 768.736 removes the cap outright against a defendant who was impaired by alcohol or drugs.
My Family Member's Survival Is Still Uncertain. Should I Wait?
There is no point in waiting to discuss your case with a personal injury attorney. If things turn out for the best, your loved one will still require money for medical care and living expenses. In the unfortunate event that they pass, it will be helpful to have some of the legal aspects of your case already taken care of.
Wrongful Death Attorney in Florida
Fort Lauderdale personal injury lawyer Justin Weinstein understands how traumatic these types of cases can be for the victim's family and friends. He is familiar with both the legal and emotional needs of wrongful death clients. When you meet with attorney Weinstein, he will walk you through the steps of a wrongful death action in Florida. All consultations are free, and you will not have to pay out-of-pocket for attorney Weinstein's legal advice or work on the case. You will not owe attorney's fees or costs unless we recover for you. Call today to discuss justice for your loved one.
