Wrongful and Accidental Deaths by the Numbers

Sources: FLHSMV 2019 Crash Report, 2016 Johns Hopkins Study

The Pinnacle of Grief

The death of a loved one or family member because of the negligence or wrongful act of another person is something we wish no one had to endure. However, each year thousands of people in Florida suffer fatal injuries in accidents.

Knowing that the death of your loved one or family member was an “accident” does nothing to alleviate the pain, suffering, and emotional and financial strain that their death can have on your family. In fact, the realization that their death was entirely preventable may further compound the grief and anguish.

While bringing a legal action may be the furthest thing from your mind as you are grieving the untimely and devastating loss of your family member or loved one, a wrongful death lawsuit can help lighten the financial burden you have suffered as a result of their death.

If you believe a family member or loved one was killed due to someone else’s negligence here in South Florida, we will review your case free of charge and help you determine whether you should file a wrongful death lawsuit.

Rules and Rights Under the “Florida Wrongful Death Act”

Florida’s wrongful death statute can be found at Sections 768.16–768.26, Florida Statutes. This section of law covers a number of points that are critical to consider if you have recently lost a loved one or family member, including:

• Definitions of key statutory terms (e.g. “survivor” and “net accumulations”),
• Who may (and may not) file a wrongful death lawsuit,
• The window of time (i.e. statute of limitations) to file a wrongful death claim, and
• The types and amounts of damages that can be recovered.

Who Can File a Wrongful Death Lawsuit?

The first step to filing a wrongful death lawsuit is to have the probate court appoint a personal representative (sometimes referred to as an “executor of the estate”). The personal representative is the person legally designated to bring lawsuits or claims on behalf of the estate or the survivors of the person who has died.

Moreover, Florida law states that wrongful death suits can only be initiated by the decedent’s personal representative. However, other “beneficiaries” can be parties to the wrongful death lawsuit, such as the surviving spouse, children, parents, adoptive siblings, or other blood relatives.

Pro Tip: While children of an unwed mother are included in the definition of “survivor,” the same does not apply to children of an unwed father unless the father has recognized a responsibility for the child’s support.

Two-Year Statute of Limitations

Unlike other personal injury lawsuits that have a four-year statute of limitations, a personal representative must file a wrongful death claim within two years. If the lawsuit is not filed within that two-year statute of limitations, your right to hold the negligent party accountable and receive compensation for the unnecessary loss of your loved one will expire.

What Is a “Wrongful Death”?

Section 768.19 of the Wrongful Death Act statutorily defines wrongful death as a death,

caused by the wrongful act, negligence, default, or breach of contract or warranty of any person…[provided that] the event would have entitled the person injured to maintain an action and recover damages if death had not ensued.

This is only an excerpt from the full 92-word, single sentence definition, which is written in typical dense legal jargon. To simplify things, it can be helpful to think of a wrongful death lawsuit as a personal injury lawsuit where, because the injured party died, a spouse or other family member brings the personal injury lawsuit on behalf of the deceased.

Pro Tip: Common examples of a “wrongful act” include negligence, careless driving, assault and battery, manslaughter, and murder. Wrongful death lawsuits are handled in civil court and are separate from any criminal charges which might be brought against the negligent party in criminal court. The purpose of a wrongful death tort is to compensate the surviving family for the financial losses they suffered because of the responsible party’s negligence.

This simplified definition is also useful in that it highlights the connection between the accidents that most commonly lead to the deaths of the injured parties. While there are more scenarios that could give rise to a wrongful death lawsuit than we can cover here, these are a few situations in which your loved one’s death may be the result of negligence.

Recovering Damages in a Wrongful Death Lawsuit

Wrongful deaths are truly life-altering events for the surviving family. Whereas a prolonged illness allows time to make arrangements and adjust in advance of a family member’s passing, the suddenness of a wrongful death means the family has no time to prepare emotionally, logistically, or financially for their new lives. Families can lose companions and role models, primary care givers, and sole sources of income at the drop of a hat, leaving them with an enormous financial burden.

While no amount of money will be able to fill the holes left in your lives, a wrongful death lawsuit may allow you to relieve some of the financial strains you are suffering, which will allow you more space and opportunity to heal and recover emotionally.

Pro Tip: In addition to providing a path to recovery for family members, exercising your right to file a wrongful death lawsuit could save lives. Your lawsuit could unearth a deadly medicine or product, highlight hazardous working environments, or curb improper medical treatments, all of which could prevent other families from suffering the loss of loved ones.

Before discussing who can recover damages, it’s important to understand two concepts that are defined in Florida’s Wrongful Death Act as they regulate what damages are available and to whom.

“Net Accumulations to the Estate”

“Net accumulations” is a term defined in the statute as the:

expected net business or salary income, including pension benefits, that the decedent probably would have retained as savings and left as part of her or his estate if the decedent had lived her or his normal life expectancy.

In other words, it is the amount of money that would have been saved by the deceased and left to the estate under normal circumstances.

Do note, however, that only pension benefits fall under the “net accumulations” category; health and disability insurance, 401(k)s, and other employer benefits are not included. Some of these benefits may be calculated in the second category, “support and services.”

“Lost Support and Services”

Support and services are actually two separate terms in the statute, but both are entirely separate from net accumulations damages. Support and services together may be construed broadly to include:

• Contributions in kind,
• Money or financial support,
• Tasks regularly performed by the decedent.

For example, take a married couple with a young child. One parent works while the other stays at home to care for their child. If the stay-at-home parent were to die, the surviving spouse could get claim as damages the cost of continued child care.

Who Can Recover?

The statute also tells us who can collect what damages from a wrongful death claim. This division of damages and parties can get complex, so it’s always best to speak to a qualified wrongful death lawyer.

The Estate of the Decedent (i.e. person that died)

• Medical or funeral expenses
• Loss of earnings
• Loss of net accumulations to the estate

Surviving Spouses

• Funeral and burial expenses
• Lost support and services (plus interest)
• Loss of companionship and protection
• Mental pain and suffering from date of the injury

Surviving Minor Children (includes all children if no surviving spouse)

• Lost support and services (plus interest)
• Loss of parental guidance, companionship, and instruction
• Mental pain and suffering from date of the injury

Parents of Minor Child (or adult child if no other survivors)

• Mental pain and suffering from date of the injury
• Medical costs
• Funeral and burial expenses

Florida’s So-called “Free Kill” Loophole

Florida’s Wrongful Death Act, unfortunately, has a restrictive exemption buried in it that further limits who can and cannot bring a medical malpractice-specific wrongful death lawsuit.

According to §768.21(8), F.S., a parent whose adult child dies or, vice versa, an adult child whose parent dies, provided that the person who died did not have a spouse or minor child, is forbidden from recovering pain and suffering damages in a wrongful death lawsuit where the death is due to medical malpractice.

Pro Tip: The provision’s morbid “Free Kill” moniker arose from the idea that under this exemption a dead patient posed no financial liability, whereas a severely injured—but living—patient would. Learn More

In other words, in cases where medical malpractice led to the wrongful death, only a spouse or a minor child may can recover pain and suffering damages. This significantly limits the number of wrongful death actions filed on behalf of unmarried adults who have adult children because without pain and suffering damages, the cost to litigate a malpractice case may be more than any potential recovery.

Florida is the only state in the nation with this type of an exclusion. Given the state’s high population of widowed seniors and unmarried or divorced adults whose children are over 25, it is estimated more than half the state’s population falls into this no-man’s land.

If you have questions about your eligibility to file a wrongful death lawsuit or to collect damages, please reach out to us right away.

Critical Steps to a Successful Wrongful Death Lawsuit

Before you bring a wrongful death lawsuit, you should consult with a qualified attorney to review your case and determine its strengths and weaknesses. Despite the grievous nature of the claim, insurance companies will still do everything they can do deny your claim or reduce the total settlement amount. As such, you need to have all of your ducks in a row, as it were.

To have a proper cause of action in Florida for a wrongful death lawsuit the following elements must be met:

1. Death of a person,
2. The death must be caused by the negligence of another person or entity,
3. The decedent’s family member must be presently suffering a financial loss as a result of the death, and
4. An estate must be set up and a personal representative appointed for the decedent.

Generally, the simple fact that a person died is a straightforward element to prove, as is the family’s resulting financial loss. The estate and personal representative can be established easily as well.

However, winning a wrongful death lawsuit largely depends on your lawyer’s ability to prove that the person’s death was caused by the negligence of the at-fault party. And proving negligence is more complicated. For negligence to be proven three things must be shown:

1. That the defendant owed a legal duty to the plaintiff,
2. That the duty owed was breached,
3. That the breach of duty by the defendant caused an injury to the decedent.

When you work with us, we will use all of our resources and know-how to collect information, witness statements, and any corroborating evidence available to strengthen your case and prove the defendant’s negligence.

Why You Should Hire a Wrongful Death Lawyer

If you are here, chances are that someone you love has been killed in an accident or by the negligence of another. We are truly sorry that you are going through this, and we sincerely hope that you and your family recover and that you can return to your normal lives as soon as possible.

We also want to help you make smart decisions about your case so you can choose the right wrongful death lawyer and get on the path to full recovery—both emotionally and financially. The effects of losing a family member suddenly can be devastating, and without a dedicated personal injury lawyer on their side, the surviving victims often don’t recover the full amount of damages to which they are entitled. When thinking about hiring a Boca Raton lawyer for your wrongful death claim, keep a few points in mind:

If you believe that someone else’s negligence or wrongful act caused the death of your family member or loved one, you need to seek out an experienced Boca Raton wrongful death attorney who will guide you through the claims process. The insurance company will have attorneys and insurance adjusters on their side to protect their interests—so should you.

The personal injury lawyers here at Personal Injury & Accident Law Center would love to speak to you about your case and tell you how we can help you get on the path to recovery. Call us today at (561)372-3800 or click the button below to schedule a free case evaluation.