Written on Sep 27, 2018 2:14:40 PM
Who Can Sue for a Wrongful Death Case in Florida?
The death of a loved one is a difficult time no matter what; the wrongful death of a loved one, due to due to medical malpractice, an auto accident, or similar circumstances, can be even more trying. Aside from the natural grieving process, those survived by the victim are left with a search for justice, anger toward those they deem responsible, and a whole host of questions.
While we’ve covered many topics related to wrongful death over the years in this blog, we’ve never directly addressed the matter of who can bring about a lawsuit. One reason for this is because it can be very complicated depending on the specifics of the situation, and it is best discussed during a free and confidential consultation. However, we understand that not everyone is ready to pick up the phone, and while you should not wait long due to statutes of limitations on filing, we are going to do our best to give you some very general information.
Negligence Versus Wrongful Death
First, it’s important to understand the difference between a wrongful death case and a negligence case, as past clients have often confused the two. While negligence does play a role in taking wrongful death cases to court, these claims are not technically negligence lawsuits.
In a traditional negligence lawsuit, the person directly affected files the claim on their own behalf. Of course, in wrongful death cases this not possible, leaving surviving loved ones to bring about a case and prove negligence. There are three basic criteria for a case to be considered wrongful death is as follows:
- The death was caused by an individual’s negligent conduct
- There are surviving and dependant family members of the victim
- There have been financial damages and repercussions stemming from the death
Since you’ve come to this page, we’ll assume numbers one and three apply. So let’s talk about the second piece of criteria.
Potential Claimants in a Wrongful Death Lawsuit
When someone dies and has a will, they leave to their beneficiaries an “estate,” which is the total of everything that they owned at the time of their death. The beneficiaries of the estate are the first category of individuals who can bring about a suit, represented by the “personal representative of the estate” who acts on behalf of all beneficiaries. When there is no will, a personal representative will be appointed by the court.
Regardless of the existence of a will, when filing a wrongful death case, the personal representative must list all survivors who have an interest in the case. This includes:
- The surviving spouse
- Minor children (defined as those under 25)
- Adult children when there is no surviving spouse (though damages will be lesser than if they are minor children)
- Each parent of a deceased minor child
- Each parent of an adult child (when there are no other survivors)
- Blood relatives that were at least partially dependent on the decedent while he or she was alive
Now this is often where waters can become muddied. Some survivors may be unfairly excluded from “having an interest in the case” when they most certainly do. This may include those in a common law marriages; those who had intent to marry or remarry; children born out-of-wedlock; stepparents and stepchildren; those acting on behalf of an unborn child; non-blood relatives with financial dependency; and a host of others. This is why it is best to consult with a wrongful death attorney as soon as possible.
What Can Be Recovered in a Wrongful Death Lawsuit
It’s important to remember that wrongful death claims seek only monetary damages and are brought in civil court by the deceased person's estate, not by the government. Although a criminal case related to the death might also be filed in court, it addresses different concerns and does not typically result in damages being paid to the estate or survivors. Florida Statutes section 768.21 sets forth the guidelines for awarding damages for wrongful death civil cases.
Those specifically named in the estate may be entitled to the following:
- Loss of net accumulations (this is based on the jury’s analysis of economic evidence such as what the decedent’s future business or employment income would have been, investments, etc.)
- Lost earnings
- Medical and funeral expenses
Survivors (which may include those named in the estate) may be entitled to the following:
- Mental pain and suffering
- Lost support and services (generally monies or assets that would have been provided throughout the decedent’s lifetime; this can be difficult to prove)
- Loss of companionship, protection, guidance, and instruction
- Medical and funeral expenses (when they were paid by the survivors)
One More Important Factor to Consider in a Wrongful Death Lawsuit
Too often, heartache, confusion, and poor advice can cause an individual to wait to file a wrongful death lawsuit. In Florida, wrongful death cases must be filed within two years of the date of death according to Florida Statutes section 95.11(4)(d). The deadline may be "tolled," or postponed, but this is very rare. Again, this is why we recommend speaking with a professional wrongful death attorney as soon as possible.
Finding Help in a Wrongful Death Case
As we stated in the beginning of this story, the intent here was to provide you with a very general overview of wrongful death cases. Your case may be, and probably is, very different. The best thing you can do if you suspect you have a wrongful death case is contact a seasoned attorney in your area. Following the loss of a loved one, reaching out for consultation with an experienced legal professional can aid in not just the support process, but also in recovering damages caused by a loved one’s premature, wrongful death.
In Spring Hill and the neighboring Florida areas, Lowman Law Firm is here for you. Our passionate, understanding attorneys will fight for your claim, and bring some final closure to the tragedy of losing a loved one wrongfully.