The death of a loved one is always difficult for the surviving family. On top of emotional trauma, it can cause huge financial problems, especially if the deceased was the breadwinner. If you find yourself in this situation, contact our Plantation wrongful death lawyers at Englander Peebles.
The surviving family has the right to seek compensation if their loved one’s death was a result of another person’s negligence or carelessness. Although legal action is not always the first thing that comes to mind during grief, it is important to contact a wrongful death lawyer as soon as possible. You only have two years to file a wrongful death lawsuit in Florida.
Table of Contents
How Is Wrongful Death Defined In The State Of Florida?
Florida’s Wrongful Death Act defines clearly what constitutes a wrongful death. In other words, it makes it clear which actions might constitute a wrongful death and which do not. The statute defines wrongful death as a death caused by the “wrongful act, negligence, default, or breach of contract or warranty of any person.”
The definition of a wrongful death includes:
- Negligence – This covers deaths caused by negligence or carelessness, like nursing neglect, pedestrian accidents fatalities
- Intentional Acts – This covers any intentional act like intentional homicide or criminal action
- Breach of contract or warranty – This covers defective products like medical devices, drugs, appliances, vehicles, etc.
- Fatal drunk driving accidents
- Faulty construction and engineering malpractice
- Medical malpractice like medication errors, surgical errors, medical injury, misdiagnosis, etc.
Who Is Qualified To File A Wrongful Death Claim In Florida?
According to Florida’s Statute 768.20, a wrongful death action should be brought by the personal representative of the diseased. The personal representative is often named in the deceased’s will. If this is not the case, then the court will appoint a personal representative and this is done by the probate court in the jurisdiction where the deceased lived at the time of the death. Often the surviving spouse is named the personal representative if there is no will, but another party can also be named.
It is the function of the personal representative to bring the wrongful death lawsuit for the benefit of the decedent’s estate and survivors. It is important to note that Florida law places specific restrictions on recovery for children, parents, and spouses.
Whenever a wrongful death claim is filed, it ends any other personal action that may have been filed on behalf of the deceased. Also, under the Florida Rule of Civil Procedure 1.260, the representative must file a motion for substitution within a particular amount of time of the defendant’s death if the defendant in the wrongful action happens to die while the action is still pending. If the representative fails to do this, the wrongful death action will be dismissed.
What Type Of Damages Are Recoverable?
There are specific types of damages a claimant can be entitled to in a wrongful death lawsuit. This is something that is clearly defined under Florida statute 768.21.
Damages are awarded in the following ways:
- The surviving spouse can recover damages for the loss of the decedent’s companionship, suffering, mental pain, and protection. Also, each surviving family can recover losses such as lost services and support. This comes with interest, as well as, compensation for loss of future support.
- The defendant’s minor children and all children (if there is no surviving spouse) can recover losses like loss of instruction, companionship, parental, and guidance. They will also recover compensation for mental suffering and pain.
- A surviving family member who paid for medical and funeral expenses can recover compensation for these expenses.
The following compensation can be recovered for the deceased’s estate:
- A loss of prospective net accumulations of the estate
- Loss of earnings
According to Florida Statute 768.21-7, the defendant’s estate is subject to the claim of creditors who have to comply with the requirements of the probate law concerning the claim. Also, adult children are barred from getting damages for lost parental companionship, pain, and medical malpractice.
Can The Surviving Family File For Punitive Damages?
Florida law allows for the courts to award punitive damages to the survivors if they manage to prove the responsible party’s actions amount to gross negligence or intentional misconduct. The main goal of punitive damages is to punish the offender and also discourage similar cats in the future by others. If punitive damages are awarded, they are added to the compensatory damages.
How Is Negligence Proved In A Wrongful Death Case?
In order to prove negligence, a lawyer must be in a position to show that the death of a loved one came about due to the fault of another person. In a wrongful death lawsuit, it is fairly easy to prove damages since it led to death.
Nevertheless, to prove negligence, a person must prove four elements, which are:
- Duty of care: The plaintiff must prove the defendant owed the decedent a duty of care.
- Breach of duty of care: The plaintiff must show how the defendant violated or breached the duty of care. This can be proven by showing specific actions or inactions the defendant took.
- Damage: Proving damage is easy since it resulted in death.
- Causation: The plaintiff must be in a position to prove the death resulted from the defendant’s actions or inactions and not any other cause.
How Do You Start A Wrongful Death Claim In Florida?
It is highly important to speak to an experienced wrongful death lawyer before filing a lawsuit. The lawyer is in a better position to offer the best legal advice and action to take. Furthermore, since they are experienced and knowledgeable with the complex legal system, they are in a better position to start a wrongful death claim on your behalf.
Under the statute of limitations in Florida, the deadline to file a wrongful death case is two years from the deceased’s death.
Contact Our Plantation Wrongful Death Lawyers
At Englander Peebles, we understand how tough it is to lose a loved one. It is not only painful but also emotionally traumatic. If you lose a loved one due to another person’s negligence, allow our experienced Plantation wrongful death lawyers to work on your case. We work on a contingency basis, which means that we do not get paid unless we win you the compensation you are rightfully owed. Call us today (954) 231-1384 for a free consultation!