Wrongful Death

Leesburg Florida Wrongful Death Lawyer

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.

What makes me Unique?

What distinguishes my firm from the many injury firms throughout the state is my background as a chiropractic physician treating injured patients for 17 years. This gives you the benefit of having someone fighting for you that understands the nature and extent of your injuries and your road to recovery.

We are Partners

If you are my client, we are partners in your road to recovery. You will always have direct access to me to have your questions answered.

Copyright © 2017 Guy S. DiMartino DC, JD, PA

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