By Marcus Fernandez
When someone suffers an injury because of the negligence, recklessness or carelessness of another party, the law allows the person to sue the individual or business responsible. Whether arising from a car accident, a fall on someone else’s property or botched surgical procedure, the identity of the person on whose behalf a lawsuit may be filed is clearly the one suffering the injury. If the injuries cause the victim’s death, the party authorized to file a wrongful death claim or lawsuit for damages and the family members entitled to receive compensation are controlled by Florida law.
What is wrongful death?
The Florida Wrongful Death Act defines wrongful death as the death of a person caused by the negligence or wrongful acts of another party. Deaths caused by the failure of someone to act when they had a duty or obligation to do so also fall within the definition of wrongful deaths. Wrongful death claims may be brought only if the victim would have had the right to sue for damages if they survived.
Who can bring a wrongful death claim in Florida?
Some states permit specific family members to bring wrongful death claims, but Florida is not one of them. Only the representative of the estate of the deceased victim is authorized to bring a wrongful death claim seeking damages for the estate of the deceased and for the surviving members of the deceased’s family designated by statute as being entitled to compensation.
The personal representative of an estate is usually the executor named in a last will and testament left by the victim. When someone dies without leaving a will or if the executor named in a will dies or is otherwise unavailable to bring the wrongful death claim, a court shall appoint someone to serve as the representative of the estate.
The Wrongful Death Act defines the surviving family members on whose behalf a claim may be brought for damages. They include the following relatives of the deceased victim:
- Spouse
- Children
- Parents
- Other blood relatives and adoptive siblings who were dependent upon the deceased for support or services
For purposes of wrongful death claims, children who are not at least 25 years of age are treated as minors for purposes of the types of damages they may claim under the law.
What types of damages can be claimed?
The damages recoverable in a wrongful death claim are the same as the victim might have recovered had he or she survived the accident. For example, compensation for the pain and suffering of the victim is not recoverable in a wrongful death case. However, the pain and suffering inflicted upon the surviving family members could be part of the claim.
Claims made on behalf of the estate
Damages recoverable in a wrongful death claim are different for the estate and for the surviving family members. The estate is entitled to recover the following:
- Earnings lost by the deceased from the date of the injury to the date of death.
- Funeral expenses payable by the estate.
- Medical expenses for treatment received by the victim up to the time of death.
The estate can also recover lost earnings the deceased might have been expected to earn had he or she survived.
Claims made on behalf of the family members
Surviving family members entitled to share in the recovery in a wrongful death claim may recover the following damages:
- Support and services the family member would have received from the deceased. This only qualifies from the date of the injury to the date of death.
- The present value of the lost future support and services calculated from the date of death.
- Surviving spouses are also entitled to make a claim, for example the value of the loss of companionship. They are also entitled to make a claim for the mental pain and anguish suffered over the loss.
- Minor children may recover for the loss of companionship and guidance of their deceased parent.
- If there is no spouse surviving, adult children of the deceased may also recover for loss of companionship and guidance.
- If the deceased was a minor, the parents may each make a claim for pain and suffering.
- Medical expenses and funeral costs paid by a surviving family member may be recovered by the person who paid them.
The statute creating wrongful death claims uses a complex method to calculate. Some of the damages recoverable by surviving members of the victim’s family with regard to calculating future support that was lost due to the death of the victim is one example. A personal injury lawyer should be consulted for advice and guidance.
How long do you have to bring a wrongful death claim in Florida?
Family members should not delay contacting a personal injury attorney to pursue a wrongful death claim. The statute of limitations, the time within which a lawsuit must be filed, is only two years from the date of death of the victim.
The two years to file a wrongful death claim is shorter than the four years for a personal injury claim. Resist the temptation to delay meeting with an attorney to begin the process of suing for damages. Keep in mind that a wrongful death claim can only be brought by the representative of the deceased victim’s estate.
The authority to act on behalf of the estate requires a court order appointing the representative. This could take time to process through the courts. It could also and add to the time it could take before the wrongful death claim can begin.
Protect your rights by consulting a Florida wrongful death attorney
The complexities of the law combined with the emotion and anguish at the sudden and tragic loss of a loved one make it essential to consult with an experienced Tampa wrongful death attorney. A consultation with an attorney provides much needed legal advice and direction at a difficult time.
