Florida's Survival Statute

Apr 19, 2011
Jessie Vanwinkle

Survival Statutes Allow a Lawsuit to Survive the Death of Either Party - Kevin Connors

Survival in legal terminology refers to the continuation of a lawsuit after the death of either the plaintiff or the defendant.

At common law, the death of either the plaintiff or the defendant would abolish a cause of action for personal torts such as negligent or intentional personal injury. Torts against the personal property of the victim survived the death of the victim, but not the death of the tortfeasor. Torts against the victim’s real property (e.g., trespass) did not survive the death of either the plaintiff or the defendant.

How Have Survival Statutes Changed the Common Law?

According to William P. Statsky, author of Torts Personal Injury Litigation, survival statutes have changed the common law regarding survival of a cause of action after the death of one of the parties. In all American states, survival statutes provide that torts against someone’s real or personal property survive both the victim and the tortfeasor.

In most states, personal torts that are invasions of tangible interests, such as injury to the body, survive both the plaintiff and the defendant. But in many states, personal torts that are invasions of intangible interests, such as defamation, do not survive the death of the plaintiff.

General Rules Applicable to Survival Actions

Statsky explains that the following general rules apply to survival lawsuits:

If the plaintiff has died, the lawsuit is brought or continued by the plaintiff's estate through the estate’s personal representative or executor.
The survival case is the same lawsuit that the plaintiff would have brought had he or she survived.
The plaintiff’s heirs or relatives do not directly receive any benefit from a damage award in any tort lawsuit that survives. Rather, any benefit that heirs receive from the cause of action will be through the distribution of the plaintiff’s estate.
The survival lawsuit is not the same as a wrongful death claim. Survival statutes deal with claims that are unrelated to the death of the plaintiff.
If the defendant dies, his or her defenses to the plaintiff’s claim survive.

Florida’s Survival Statute

Florida has a very broad survival statute. Section 46.021, Florida Statutes, provides, “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.” In other words, it does not matter what type of claim is involved, the claim will survive all parties.

Under Florida law, if the plaintiff has died but the defendant is still alive, the plaintiff’s estate may recover punitive damages from the defendant, depending on the circumstances, of course. If the defendant has died, however, punitive damages are not recoverable from innocent heirs or creditors of the deceased defendant. This is because the death of the tortfeasor defeats the central purpose of a punitive damages award, which is punishment of the tortfeasor.

Sources:

Statsky, William P. Torts Personal Injury Litigation (4th ed). N.Y.: Delmar Learning, 2001.
Lohr v. Boyd, 522 So. 2d 845 (Fla. 1988).
Atlas Properties, Inc. v. Didich, 226 So. 2d 684 (Fla. 1969).
§ 46.021, Florida Statutes.

Disclaimer: This article is in no way intended as legal advice. For help with specific legal issues, one should contact a licensed attorney in one's local area.