We all know that those who wrongfully cause the death of another can face criminal charges and be sentenced to time in jail. However, what some people do not realize is that a separate civil wrongful death lawsuit may be filed against the wrongdoer to obtain compensation for the victim’s family.
The criminal and civil trials based on a wrongful death incident are very different, involving different laws and different burdens of proof.
While no amount of money can truly compensate for the loss of a loved one, monetary compensation can help ease the burden caused by extra expenses and mental anguish.
If you believe a family member has suffered death as the result of another’s negligent or wrongful behavior, consult a Stuart wrongful death attorney from Kogan & DiSalvo to learn about the possibility of compensation.
Florida’s Wrongful Death Act
Florida lawmakers passed the Wrongful Death Act to govern wrongful death cases, and the laws in this act are codified under Sections 768.16-768.26 of the Florida statutes.
Essentially, when an individual’s death is caused by “the wrongful act, negligence, default, or breach of contract or warranty” by a person or entity and the victim would have been entitled to file a lawsuit to recover damages if they had survived, the law states that the person responsible remains liable and that another party may sue to seek damages and a wrongful death lawyer in Stuart can help.
After the tragic death of a loved one due to another party’s negligence or willful actions, the deceased’s family and/or representatives have multiple options for taking legal action. One option is a wrongful death lawsuit, and another is a survival action lawsuit. While both claims seek damages for the loved one’s preventable death, there are important technical differences between the two that should be discussed with an experienced attorney.
Common Causes of Wrongful Death Cases
Certain injuries and circumstances are particularly likely to lead to a wrongful death cause of action. Some of the most common types of wrongful death cases include:
- Vehicular accidents. With the number of drivers in Florida, it’s not surprising that auto accidents are the most common cause of wrongful death cases. This is particularly true of truck accidents or an open vehicle such as a motorcycle.
- Medical malpractice. From minor oversights that lead to a misdiagnosis, to complicated errors during brain surgery, medical malpractice involves failures to properly diagnose or treat a condition.
- Defective products. This can include defective safety equipment, brake pads that fail, medical devices that malfunction, or a myriad of other products whose failure at a key moment can result in death.
- Work accidents. Certain jobs, such as logging, mining, and roofing, have hazardous worksites where even the best precautions cannot prevent every death, and employers are often tempted to cut corners to finish on time and under budget.
- Airline accidents. Although rare, when a commercial airline accident does occur, they result in hundreds of wrongful death claims.
- Pedestrian accidents. When a pedestrian is hit by a vehicle, they have no protection, and the injuries are often quite severe.
Who Can Bring a Wrongful Death Claim?
Under Florida law, Statute Section 768.19, only a decedent’s personal representative can bring an action for wrongful death before the probate court. The personal representative (called an executor in other jurisdictions) is the party named in the will to handle the affairs of the estate, such as paying final bills. If the deceased did not leave a will, the court will appoint a personal representative.
Though the action is filed by the representative, it is filed for the benefit of the survivors of the deceased, and all the eligible survivors must be listed in the claim.
The parties entitled to recovery as survivors include:
- The spouse;
- Parents; and
- Other relatives or adopted siblings who were dependent on the deceased party for support or services.
The status of potential survivors gets complicated when situations such as pending divorce, common law marriage, and blended families are part of the equation. A Stuart personal injury attorney can help answer the question of which survivors can put forth a claim, and how a settlement or judgment from this claim will ultimately be distributed.
Potential Compensation in a Wrongful Death Lawsuit
Eligible survivors may be found entitled to certain damages, depending on the age of the deceased party and their degree of dependence. For instance, children under the age of 25 are generally entitled to greater recovery than those over that age because they are presumed to be more dependent on the deceased parent for support.
The damages awarded to compensate families include the losses that the decedent would have suffered between the accident or incident and their death, whether this time was an hour or several years, in addition to the loss of the individual suffered. This can be a significant amount as many of the accidents that ultimately lead to a wrongful death are catastrophic injuries, which lead to significant damages.
The damages in a wrongful death case can include:
- Economic damages, which are costs that are demonstrable by a simple mathematical formula. This can include:
- Medical bills such as emergency room visits;
- Rehabilitation bills, such as physical therapy or mental health counseling;
- Repair or replacement bills for damaged property;
- Lost wages from time out at work;
- The amount of support and/or service the survivor had received from the deceased person, such as childcare or home healthcare for a disabled spouse; and
- Funeral and burial expenses
- Noneconomic damages, which are losses that are intangible. This can include:
- Pain and suffering;
- Loss of protection,
- Loss of companionship
- Loss of guidance
- Loss of quality of life; and
- Mental anguish.
- Punitive damages, also called exemplary damages, are awarded to punish the wrongdoer and provide an example to discourage others from acting similarly. In Florida, a plaintiff must demonstrate particularly egregious behavior from the defendant to win punitive damages.
In addition, the survivors may also receive damages paid to the estate, because the assets of the estate are distributed to the beneficiaries once all obligations are fulfilled. The estate may recover damages for things such as lost wages and benefits, medical and funeral expenses that the estate paid for.
Florida law caps wrongful death cases at $200,000 if they are filed against a governmental entity. Non-economic damages are typically not capped. However, there are some industry-specific caps, such as $150,000 per claimant or $300,000 total, for negligence against medical practitioners providing emergency services. Florida law generally provides no cap for economic damages. Punitive damages are capped at $500,000 or three times the amount of economic and noneconomic damages, whichever is higher.
Statute of Limitations
As per Florida law, a wrongful death lawsuit generally must be filed within two years of the death of the decedent, or it will likely be dismissed.
Because a death from an accident may result long after the accident occurred, often, there will be a negligence lawsuit for the accident before the death of the decedent. Surviving family may be able to file a wrongful death claim, even if they previously were awarded damages or settled for the prior negligence claim, as wrongful death will involve different damages.
How a Wrongful Death Attorney Can Help
We rely on family members for all different types of support, from financial to emotional and spiritual.
If you have been deprived of that support by the wrongdoing of another due to a fatal accident in Stuart, Florida, or Martin County, it’s time to contact a wrongful death lawyer who will evaluate your situation and advise of the appropriate steps to take to help restore peace and stability to the family.
The experienced attorneys at Kogan & DiSalvo can handle your wrongful death claim with the attention and sensitivity it deserves. From filing the claim to negotiating with insurance to deciding whether a settlement is right for you, we will be there to help at every step until you receive the compensation you deserve.