Wrongful death compensation is calculated by determining the monetary value of the economic and non-economic losses that surviving family members can recover. Family may include the decedent’s children, spouse, parents, and other eligible relatives. When another party’s negligence causes a person’s death, there is usually grounds for a wrongful death lawsuit.
Under Florida Statutes § 768.19, wrongful death is defined as “the death of a person caused by the wrongful act, negligence, default, or breach of contract or warranty of any person.” If the event would have entitled the injured person to recover damages had their death not occurred, the party liable for their damages can still be held liable even though the person died. The decedent’s estate can pursue damages against the at-fault or liable party.
How do Wrongful Death Actions Work?
A wrongful death action requires a surviving family member to file a civil tort claim after a loved one’s death. This action is independent of a criminal charge and seeks compensation for the family’s losses. The family should not be responsible for the losses their loved one’s death created. Instead, the negligent party should cover these costs.
Compensation commonly awarded in a wrongful death case includes:
- Medical expenses before the person’s death
- Lost wages
- Funeral expenses
- Pain and suffering
- The surviving spouse’s lost companionship and protection
- Loss of parental training, companionship, and guidance for minor children
In general, wrongful death damages will be based on a plaintiff’s relationship to the deceased, the cost of replacing services rendered by the deceased, and the amount of available income.
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How Long do I Have to File a Wrongful Death Action?
Florida Statutes § 95.11(4)(d) outlines the time limit to file a wrongful death action. While this section of the statute stipulates that a person generally only has two years to file a wrongful death action, there can be multiple exceptions to this rule that could give a family more time to file. An attorney can advise you on whether any of these exceptions apply to your case.
Some of the possible situations may include:
Medical malpractice: The important thing to know with medical malpractice deaths is that the statute of limitations in a wrongful death case does not begin on the date of a person’s death. Instead, it starts on the date the family discovered the cause of the death. Keep in mind that Florida Statutes Chapter 766 governs most Florida medical malpractice claims.
Homicide/murder: A death that another person causes in a homicide or a murder will mean the statute of limitations does not begin until the alleged offender responsible for the death has been apprehended. Some of these investigations could take several months or even years, and it is possible an offender may not be captured.
Governmental entity: Florida stipulates that the statute of limitations increases to four years when a governmental entity is responsible for a person’s death. The reason for this extended deadline concerns notification requirements that must be completed within three years.
The defendant is not in the state or cannot be found: When the person responsible for a death cannot be located, that could also help toll (or delay) the statute of limitations. Just as is the case in a murder, the offender needs to be located and served first.
The plaintiff is a minor: When the person filing a lawsuit is considered a minor child, a lawsuit has up to seven years to be filed. It is important to note that under Florida Statutes § 768.18(2), minor children are defined as children under age 25. Parents of children may file lawsuits in these cases, but the statute of limitations could again be tolled if:
- The child does not have a parent or guardian.
- The parent or guardian’s interests are opposite of the child’s.
- The parent or guardian is unable for any reason to sue on the child’s behalf.
What Is the Difference Between a Wrongful Death Action and a Survival Action?
In Florida, wrongful death actions seek compensation for the family members affected by a loved one’s death. A survival action, however, is an action created under Florida Statutes § 46.021. This law stipulates, “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, a survival action is a lawsuit filed on a deceased person’s behalf and seeks the compensation that person would have recovered had they lived. A survival claim does not make considerations for the impact a person’s death had on the family. Instead, it considers all the factors a person experienced before their death. It may be possible for plaintiffs to file wrongful death actions and survival actions.
What Kinds of Accidents Lead to Wrongful Death Actions?
People can be killed in a wide variety of circumstances. Undoubtedly, one of the most common kinds of incidents that can lead to death is motor vehicle accidents. The Florida Department of Highway Safety and Motor Vehicles (FLHSMV) reported that 3,098 of the 341,399 total crashes in 2020 were fatal accidents, causing 3,322 fatalities. The number of fatal crashes and fatalities increased from 2019, in which there were 3,185 fatalities in 2,951 fatal accidents.
Other common kinds of wrongful death actions could include:
- Pedestrian accidents
- Bicycle accidents
- Premises liability
- Product liability
- Medical malpractice
- Intentional acts
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Call the Law Offices of Anidjar & Levine Today
If your loved one died in an accident or other incident, we are truly sorry for your loss, and we want to help in any way we can. Call the Law Offices of Anidjar & Levine at 1-800-747-3733 today for a free consultation.
We will explain how wrongful death compensation is calculated and review your legal options. We handle cases throughout Florida. Our firm has Fort Lauderdale, Naples, Jacksonville, West Palm Beach, Orlando, and Tampa offices. You can read the reviews on our website to better understand how we served our past clients.
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