The Florida Legislature enacted the Florida Wrongful Death Act with the stated purpose of shifting the costs associated with losing a family member to the person who caused the death. The statute:
- Specifies who may bring a wrongful death lawsuit.
- Delineates the parties to a wrongful death lawsuit.
- Defines the appropriate right of action for the case.
- Sets forth allowable compensation for the wrongful death.
- Limits recovery in some instances for medical negligence.
What is a Survivor Under Florida's Wrongful Death Act?
When someone is killed by the wrongful act of another, only the decedent's survivors are entitled to compensation for the wrongful death. The statute defines survivors as the decedent's spouse, children and parents. If any other blood relative or adopted sibling is partly or wholly dependent on the decedent for support or services, that person may also be deemed a survivor entitled to compensation for the wrongful death.
Who are the Parties in a Wrongful Death Lawsuit?
The decedent's personal representative acts as the plaintiff in a wrongful death lawsuit. The personal representative is the party who recovers any compensation that is awarded, and he or she does so on behalf of the decedent's survivors and the estate. The personal representative must pay any attorney's fees and other litigation expenses out of the compensation awarded to the survivors or the estate.
The defendant in a wrongful death lawsuit is the alleged wrongdoer, unless that person has also died. If the wrongdoer has died, or dies during the course of the litigation, the wrongdoer's personal representative substitutes as the defendant.
What is the Right of Action in a Wrongful Death Claim?
Under Florida's Wrongful Death Act, survivors may sue the defendant for the victim's death caused by the defendant's alleged:
- Negligence, including medical negligence
- Default
- Breach of contract
- Breach of Warranty
- Wrongful act
So long as the defendant's tort or other wrongful act would have entitled the decedent to maintain a lawsuit against the defendant had he or she not died, the decedent's survivors, as defined in the statute, may bring a wrongful death lawsuit. This is the case even if the defendant's act could also be prosecuted as a felony.
Compensation for Wrongful Death
All survivors may be compensated for the value of lost support and services from the date of the decedent's injury or death, and for the loss of future support and services. Services include such things as household tasks. The surviving spouse may recover for the loss of the decedent's companionship and protection and for mental pain and suffering. Minor children, and all children if there is no surviving spouse, may be compensated for lost parental companionship, instruction and guidance and for mental pain and suffering.
If the decedent was a minor child, each parent may be compensated for mental pain and suffering from the date of the injury or death. Each parent of an adult child may also recover for mental pain and suffering if there are no other survivors. The defendant in a wrongful death claim must also pay the medical or funeral expenses to the survivor who paid them.
Wrongful Death for Medical Negligence
Florida's Wrongful Death Act places specific limits on recovery for pain and suffering in the event the wrongful death is caused by medical negligence. Survivors who are adult children of the decedent cannot recover for lost parental companionship, instruction and guidance or for mental pain and suffering if the death was the result of medical negligence. Similarly, surviving parents of an adult child cannot recover for mental pain and suffering if the wrongful death was caused by medical negligence.
Wrongful Death Attorneys
Many U.S. jurisdictions have implemented statutory schemes that govern the filing of a wrongful death lawsuit. Florida's Wrongful Death Act is one such example, and the laws in other states may vary. Because of the complexities involved in bringing a wrongful death lawsuit, one should seek the assistance of an experienced wrongful death attorney in one's local area.
Sources: Sections 768.16 - 768.26, Florida Statutes (2009).
Additional Resource: How to Hire an Attorney
Disclaimer: This article is in no way intended as legal advice. For help with specific issues involving torts or wrongful death, one should contact a licensed attorney in one's local area.
Jessie Vanwinkle - Jessie Vanwinkle is an attorney in practice since 1998. View her full profile for more information.
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