WRONGFUL DEATH LAWSUITS
A death at any time is an a powerfully sorrowful event for family members, loved ones and friends. A wrongful death expands that grief exponentially because it was preventable. A wrongful death claim can be filed if a death was caused by the negligence, carelessness, recklessness or intentional conduct of another person or business. In Florida, a person usually has two years from the date of the wrongful death to file a wrongful death lawsuit. Wrongful death cases are regulated by the Florida Wrongful Death Act, Florida Statutes § 768.16, along with other applicable Florida laws.
WHO CAN FILE?
The 2017 Florida Statutes as they concern the Florida Wrongful Death Act consists of Florida Statutes sections 768.16 through 768.26 which give guidance. They dictate that the term “survivors” include the deceased person’s spouse, parents, children, or anyone who depended on the decedent for support, either partially or completely, any blood relatives, and/or any adopted sisters or brothers. The term also includes a child “born out of wedlock” of the mother, but not necessarily of the father, depending on if that child was dependent on the father for support. The person who actually files the suit however, is always going to be the personal representative (PR) for the deceased person’s estate. I typically pay to have this set up in most of my wrongful death claims. The PR may or may not be one of the beneficiaries of the suit.
WHAT DAMAGES CAN BE DETERMINED?
Under § 768.21 of the Florida Statutes, damages are identified and are different depending on who the survivors are.
For a couple examples:
A surviving spouse with no children would make a claim for:
- Loss of Decedent’s Companionship and Protection
- Mental Pain and Suffering from date of injury
- Loss of Support and Services from date of injury to date of death (w/ interest)
- Future Loss of Support and Services from date of death (at present value)
Medical and funeral expenses due to decedent’s injury/death if paid by survivor
Surviving children (under 24) when there is a surviving spouse make a claim for:
1. Loss of Support and Services from date of injury to date of death (w/interest)
2. Future Loss of Support and Services from date of death (at present value)
3. Minor children only (under 25), or all children if there is no surviving spouse, may also recover loss of parental companionship, instruction, and guidance AND mental pain and suffering from date of the injury. However if there is no surviving spouse the children may be able to make additional damages.
Of course the claims made by a child who dies with surviving parents but no spouse or children the recovery are very different and different than an adult child with surviving parents.
These differences are very important, and it is imperative that your attorney know the difference of how they interplay and how to prove damages such as loss of earnings, interest, net accumulations, etc. as well as other important factors, such as joint life expectancies and the affects of remarriage.
Zane T. Cagle of The Cagle Law Firm of St. Louis, Missouri, and Clifford K. Wells of Herman & Wells of St. Petersburg, Florida represented Debra Mael and the estate of Derek Mael.
In the early morning hours of May 30, 2014, Derek Mael and a passenger in his motor vehicle were looking for a parking space in the Westport area of Kansas City, Missouri. While attempting to locate a parking space, Mael and his passenger became involved in a verbal exchange…