Fatal car accidents claim the lives of thousands of people every year in Florida and throughout the United States. In 2010, there were 2,261 fatal car accidents in Florida and 2,444 people lost their lives. Lake County saw 43 fatalities. Orange County lost 130 people. Osceola lost 34, Martin County 27, Marion County 73 , St. Lucie County 29, Okeechobee County 13 and Indian River County lost 26 folks.
Foundation of a Florida Wrongful Death Action
When people are killed in fatal car and truck accidents, their family and loved ones have the legal right to seek compensation for their damages and suffering from the party who was responsible for the accident. Historically, wrongful death in Florida was not recognized under the common law. Under the common law, when a person died as the result of someone else's negligence, any personal injury claim that could be made for the accident died with the victim. Today, a wrongful death action is a creature of statute. So in a fatal car or truck accident, attorneys seek compensation on behalf of the victim's survivors.
Wrongful Death Actions are Different than Personal Injury Actions
Even though it is true that a wrongful death action can be based on negligence that caused the death of the decedent, there are differences in Florida law between a wrongful death action and a personal injury action. The Fifth District Court of Appeals in Taylor v. Orlando Clinic explained the differences in the actions as follows:
Personal Injury Action
|Wrongful Death Action|
|At common law||Creature of Statute|
|Requires personal injury but not death||Requires death – but not necessarily death caused by negligence|
|Accrues at time of negligent act||Accrues at the time of death|
|Is in favor of injured person||Is in favor of Estate and survivors|
|Damages are different||Damages are different|
|Cannot co-exist with wrongful death action||Cannot co-exist with personal injury action|
How a Wrongful Death Action Works
In order to pursue a Florida wrongful death claim, a probate estate has to be opened and a personal representative of the estate is appointed. The personal representative is the plaintiff and h/she will seek compensation for the statutory survivors. Generally, because the personal representative of the decedent's estate is the party who brings the action, h/she has the power to enter into any settlement agreements.
Who are the Claimants in a Florida Wrongful Death Action?
The Florida Wrongful Death Statute sets two categories of claimants, which are: (1) the decedent's estate; and (2) the decedent's survivors. The statute defines survivors as:
Decedent's spouse, children, parents, and when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It includes the child born out of wedlock of a mother, but not the child born out of wedlock of the father unless has recognized a responsibility for the child's support.
The act also defines “minor children” as children under the age of 25, notwithstanding majority.
Compensation Available in a Florida Wrongful Death Action
As mentioned above, there are two main categories of claimants in a Florida Wrongful Death Action: (1) the decedent's estate; and (2) the decedent's survivors.
Compensation available to the Decedent's Estate
In a Florida wrongful death action, the decedent's estate may be entitled to the following recovery from the wrongdoer:
- Loss of net accumulations
- Decedent's lost earnings
- Decedent's medical and funeral expenses
- Compensation available to the Decedent's Survivors
In a Florida wrongful death action, the decedent's statutory survivors may be entitled to the following recovery from a wrongdoer?
- Lost support & services
- Loss of decedent's companionship & protection
- Mental pain & suffering
- Lost parental companionship, instruction & guidance
- Medical and funeral expenses paid by the survivor
Medical Malpractice Wrongful Death Claims are Treated Differently
The Florida wrongful death act treats medical malpractice claims differently. In a medical malpractice wrongful death claim only “minor children” and the “surviving spouse” can receive compensation. Adult children are not eligible for compensation and parents are not eligible for compensation if their adult child died because of alleged medical malpractice.
If you have any questions about a Florida wrongful death case, call Guy S. DiMartino, DC, JD at (352) 267-9168 or fill out the Internet consultation form.