There is nothing more painful than the loss of a loved one. When your family member dies because of another party’s negligence, the pain is even greater because the loss was avoidable. Had that party behaved responsibly, your loved one would still be alive today.
A wrongful death attorney in Vero Beach at Kogan & DiSalvo is ready to serve your family by protecting your rights and holding those responsible for your family member’s death accountable. There will always be an empty seat at your table, but monetary compensation can ease the financial burden of the family members who must cope not only with their personal loss but also the loss of financial support provided by the deceased.
What Is a Wrongful Death Case?
When a person dies in Florida due to another party’s negligence or recklessness, family members may file a wrongful death lawsuit.
Under Florida statute §768.19, part of Florida’s Wrongful Death Act, “When the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, including those occurring on navigable waters, and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued, the person or watercraft that would have been liable in damages if death had not ensued shall be liable for damages as specified in this act notwithstanding the death of the person injured, although death was caused under circumstances constituting a felony.”
What Are Common Causes of Wrongful Death?
While car accidents are a common cause of wrongful death, it is far from the only one. Other frequent causes of wrongful death include:
- Bicycling accident
- Boat accident
- Bus accident
- Construction accident
- Medical malpractice
- Motorcycle accident
- Nursing home abuse
- Pedestrian accident
- Product liability
- Slip and fall
- Truck accident
Intentional acts, such as manslaughter or murder, also fall into the category of wrongful death. While criminal charges fall under the jurisdiction of the criminal justice system, a civil lawsuit is a separate matter. If someone committed a crime that led to your loved one’s demise, you can still file a wrongful death lawsuit against that defendant even if they were never charged criminally or were found not guilty at trial.
Who Can File a Wrongful Death Case?
Under Florida law, only the personal representative of the deceased’s estate can file a wrongful death lawsuit. If the deceased left a will, they named an executor of their estate in the document. If they died without a will, or intestate, the probate court would appoint a personal representative.
The lawsuit is filed on behalf of the late person’s family. Those who can recover damages in a wrongful death case include the late person’s:
- Biological children
- Adopted children
- Blood relatives dependent on the deceased for financial support
Unfortunately, long-term unmarried romantic partners of the deceased are not included among the beneficiaries in a wrongful death lawsuit. They may file the lawsuit if the deceased named them as the executor of the will, but are not considered beneficiaries under Florida law.
Children born out of wedlock can recover damages for the death of their mother. If the father died and had recognized responsibility for their support, the child can also receive damages.
Wrongful Death vs. Survival Action
Not every person who loses their life because of another party’s negligence dies instantly. If your family member survived for any amount of time after the accident that ultimately claimed their life, a survival action can seek damages for the pain and suffering they experienced before succumbing. Such an action is one the deceased could have pursued had they not been killed.
A wrongful death claim considers how the death affected the family. That is not true of a survival action. Instead, a survival action focuses on the suffering of the victim while alive.
Under Florida law, the estate cannot recover compensation for wrongful death and a survival action for the same injury. It does permit the estate to pursue both claims and then determine which is the best option at the time of trial.
Potential compensation, or damages, in a wrongful death lawsuit includes:
- Funeral and burial costs
- Loss of financial earnings
- Loss of accumulated value of the estate
- Loss of companionship
- Loss of guidance
- Loss of services performed by the deceased, such as child care, housekeeping, and yard maintenance
- Mental anguish
Factors involved in the amount of damages awarded in a wrongful death case include the deceased’s age, occupation, education and training, and health status.
In a survival action, the damages are the same ones your loved one could receive if the accident involved personal injury rather than death. Survival action compensation may include:
- Medical expenses between the time of the accident and death
- Lost wages
- Property damage
- Loss of enjoyment of life
- Pain and suffering
When determining damages in a survival action, the jury may consider factors such as pain severity and the length of suffering.
Filing a Wrongful Death Claim in Florida
The majority of wrongful death claims are settled. However, if the insurance company does not agree to a fair settlement, the attorney will take the case to court. Never agree to a settlement without consulting a lawyer. Insurance companies want to settle for as little as possible and take advantage of the fact that the surviving relatives are grief-stricken and not in a position to negotiate a settlement.
A wrongful death lawyer fights to obtain the maximum compensation possible while the family is in mourning. An insurance settlement provides money more quickly for survivors than a lawsuit.
Before filing a wrongful death lawsuit, the attorney collects evidence and investigates the circumstances of the person’s demise thoroughly. All legal issues relating to the case are identified. Evidence may include:
- Police reports
- Medical reports
- Accident scene photos and videos
- Surveillance footage
- Eyewitness accounts
Much depends on the circumstances of the accident. For instance, if a drunk driver killed your family member, the attorney would obtain the driver’s BAC level at the time of the crash. If the accident occurred due to distracted driving, the attorney seeks out the driver’s cell phone records.
Your attorney also identifies all possible defendants. What seems like a straightforward case is often more complicated than it first appears. For example, if a motorist crashed into your loved one and killed them, it may turn out that entities besides the driver are responsible. Perhaps the collision happened because of a malfunction in the vehicle. In that scenario, the manufacturer or repair service may potentially prove liable.
Statute of Limitations
In Florida, the statute of limitations for filing a wrongful death lawsuit is two years from the death date. However, it is vital that you contact a wrongful death attorney as soon as possible after your loved one’s loss. Although this is an extraordinarily difficult time for you, without prompt action critical evidence may disappear. The stronger the evidence, the more likely you are to win your case.
Contact a Vero Beach Wrongful Death Attorney
If a family member died due to another party’s negligence, contact a compassionate and knowledgeable Vero Beach personal injury lawyer at Kogan & DiSalvo. Schedule a free, no-obligation consultation today. We work on a contingency basis, so there is no fee unless you receive compensation.