It is a terrible tragedy when a loved one dies because of someone else’s wrongful actions or carelessness. The pain of losing someone can be even worse under these circumstances because the loss did not have to happen. While nothing can bring your loved one back, Florida law provides ways for family and other beneficiaries to seek compensation for the financial repercussions of a loved one’s death. These payments, called “damages,” help compensate for the burden of the unexpected expenses that occurred because of the injury or accident, including medical and funeral expenses and the loss of the decedent’s income. Spouses, parents, and children of the person who died can also seek compensation for the losses they will face in the future because their loved one is no longer with them. These include both tangible losses, such as the loss of payments for children’s education, and emotional losses, such as the loss of moral guidance and affection. Receiving these payments is understandable a top priority for those suffering from a wrongful death and is the driving factor in seeking out a wrongful death attorney in Boca Raton.
Florida personal injury laws provide two specific legal remedies after someone dies from unintentional injuries – a wrongful death lawsuit or a survival action. Though both of these options stem from the same fatal accident, they differ in significant ways. Below, the skilled personal injury attorneys at Robinson & Casey provide an overview and highlight the key differences between these legal claims.
What is Wrongful Death?
Under Florida law, a death is considered a “wrongful death” if the person was killed because of someone else’s acts that the law considers negligent, wrongful, or a breach of duty. Fla. Stat. § 768.19. A wrongful death lawsuit seeks compensation for the harm family members suffered due to their loved one’s death. This might include the emotional suffering or loss of financial earnings the family has experienced. Some examples of wrongful death claims include being involved in a motor vehicle accident with a drunk driver, a preventable accident, such as a fall from a balcony that lacked safety railing, someone dying from a gunshot wound, medical malpractice or a negligent medical mistake, or a slip and fall on someone else’s property. The victims in a wrongful death case are the surviving family members. The personal representative of the decedent’s estate has standing to bring a claim on behalf of the surviving spouse, children, and other relatives.
What Can the Law Do for You if a Family Member Suffered a Wrongful Death?
As discussed above, Florida law provides two ways for you to file a claim for damages. One is a wrongful death lawsuit, and the other is a survival action. People can, and often do, file for both. Florida’s system, with its two different types of actions, is complicated. If you live in Palm Beach County, you should consult Robinson & Casey to speak to a wrongful death attorney in Boca Raton who has extensive experience with the state with wrongful death claims to make sure that you are covering all of your bases and getting everything you are entitled to under the law.
What is a Wrongful Death Lawsuit?
In Florida, a wrongful death lawsuit seeks to compensate family members for losses they will suffer because the person who died is no longer in their lives. These losses are calculated from the time of death until the end of the person’s expected life span had the injury or accident not occurred.
A wrongful death claim is predicated on a claim that surviving family members have suffered a loss. Under the Florida wrongful death statute, are several different types of damages available. Fla. Stat. § 768.21. The types of losses that family members can seek may include financial support the deceased would have been expected to contribute to the family, including payment for housing, food, clothing, education, medical care, entertainment, and gifts; work the deceased would have contributed to the home, including child care, cooking, cleaning, and yard work; loss of the deceased’s guidance, companionship, and comfort; and spouses may also claim loss of affection, love, and sexual relationship.
In a claim for wrongful death, Florida law requires the plaintiff to prove the following elements: (1) the defendant’s tortious conduct (i.e., the defendant’s intentional, negligent, or reckless actions amount to a claim for damages under personal injury or contract law); (2) the victim’s right to sue the defendant (i.e., the victim would have been able to bring a personal injury claim against the defendant for damages if he or she had survived); (3) identification of the representative and family members (i.e., a personal representative of the victim’s estate and the surviving family members have been identified); and (4) causation and damages (i.e., the defendant’s conduct caused personal or financial injuries to the surviving family members of the victim’s estate).
Compensation from a settlement or jury award must be distributed equally among all beneficiaries. If the adult beneficiaries can come to an agreement on a specific plan for allocation, the court will generally honor that agreement.
What is a Survival Action?
A survival action in Florida seeks compensation for expenses and losses that are caused by the accident or injury. Put another way, a survival action allows the family to continue a claim that the deceased could have pursued while alive. Fla. Stat. § 46.021 (“No cause of action dies with the person. All causes of action survive and may be commenced, prosecuted, and defended in the name of the person prescribed by law.”). A survival action is similar to a personal injury lawsuit that the person who died could have brought for themselves if they were still alive. Since the person can no longer bring a lawsuit on their own behalf, their family can bring it for them. For instance, the person might have suffered significant pain and suffering between the moment of the accident and death. The types of loss that may be compensated in a Florida survival action include medical and hospital expenses that are related to the injury; pain and suffering caused by the injury; lost wages from the time of the injury until the time of death; emotional distress caused by the injury; and funeral expenses and estate administration costs. Unlike a wrongful death claim, a survival claim does not consider the impact of the person’s death on the family.
Who Can File A Survival Action or a Wrongful Death Claim in Florida?
A survival action must be filed by a personal representative (or administrator or executor) of the estate. The representative brings the action on behalf of the beneficiaries of the estate.
The rules for bringing a wrongful death lawsuit are different. A member of the immediate family may file the claim.
Florida law does not allow recovery of damages for both wrongful death and a survival action, but you can pursue both simultaneously. When it comes to the trial, the personal representative can elect which of the two remedies will be most advantageous. However, many wrongful death cases are resolved via settlement before trial. A negligent motorist, property owner, or other at-fault party typically has liability insurance to cover accident cases, so you might be able to work out an agreement.
Through a wrongful death action OR survival action, it is possible to recover damages for the decedent’s lost income and financial contributions; loss of companionship, education, guidance, and love; funeral and burial expenses; and the costs of the decedent’s medical care prior to death.
When Can I File a Survival Action or Wrongful Death Lawsuit in Florida?
Usually, you must file these claims within two years of the death.[1] Fla. Stat. § 95.11(4)(d). If you miss the deadlines, you will not be able to file, so it is important to speak with one experienced wrongful death attorney in Boca Raton as soon as you can. To prove these types of claims, you need substantial evidence, including experts who can investigate and testify about what happened.
Wrongful Death Attorney in Boca Raton: Get Help from Robinson & Casey
The trial attorneys at Robinson & Casey have been fighting for the rights of people in Florida for several years. The experienced team of personal injury attorneys at Robinson & Casey has the knowledge, experience, and dedication to guide you through the complex wrongful death claim process and see that you get the compensation you deserve for your tragic loss. If you are seeking a wrongful death attorney in FL, please call us today at 561-375-5204.
[1] Fla. Stat. § 733.104(1) provides that when a person dies before the expiration of the limitations period for his or her cause of action, the action may be commenced by the decedent’s personal representative “before the later of the expiration of the time limited for the commencement of the action or 12 months after the decedent’s death.” Fla. Stat. § 733.104(2) provides that when a person dies before the expiration of the limitations period for a cause of action that could have been asserted against him or her, the cause of action will be deemed timely so long as a statement of claim is timely filed against the decedent’s estate in the applicable probate proceedings.
