Damages/Compensation in Florida Wrongful Death Cases

May 12, 2010

When the death of an individual is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person or company, including those occurring on navigable waters, who may be entitled to compensation for the loss is a matter of statutory design, the work of the Florida Legislature. The Legislature's work is located in what is known as the "Florida Wrongful Death Act," Sections 768.16 through 768.26 of the Florida Statutes. The particular section of the Act dealing with damages is 768.21 .

Wrongful Death claims are brought through an Estate by a Personal Representative on behalf of those entitled to compensation. In most cases, the Personal Representative is a surviving family member and also entitled to compensation. The Personal Representative hires the attorney to prosecute the case.

Individuals entitled to compensation under the Florida Wrongful Death Act are referred to as "survivors." The Act also authorizes the decedent's Estate to recover damages under certain circumstances.

Who is eligible and what is recoverable for damages under the "Florida Wrongful Death Act" is not a simple formula. Multiple factual variations apply. What follows is an outline of those variations:

Spouse Dies - Surviving Spouse but no Surviving Children
Spouse's Damages:


  • Loss of Decendent'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

Spouse Dies with Surviving Children and Surviving Spouse
Spouse's Damages:

  • Loss of Decendent'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

Children's Damages:

  • 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)

  • Minor children only (under the age of 25 - Section 768.18(2) Florida Statutes), 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

Parent Dies with Surving Children but no Surviving Spouse
Surviving Children:

  • 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)

  • All children may recover loss of parental companionship, instruction, and guidance and mental pain and suffering from date of the injury

Child Dies with Surviving Parents but no Surviving Spouse or Children
Parents' Damages for loss of minor child
:


  • Mental pain and suffering from date of injury

  • Medical and funeral expenses due to decedent's injury/death if paid by survivor

Parents' Damages for loss of adult child:

  • Mental pain and suffering from date of of injury (so long as there are no other survivors)

  • 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

Personal Representative's Damages for all cases

  • Loss of earnings of the decedent from the date of injury to the date of death, less lost support of the survivors excluding contributions in kind, with interest

  • Loss of prospective net accumulations of an estate, which might reasonably have been expected but for the wrongful death, reduced to present money value, may also be recovered if (a) the decedent's survivors include a surviving spouse or children; or (b) if decedent is not a minor child (under age 25), there are no lost support and services recoverable, and there is a surviving parent

  • Medical or funeral expenses due to decedent's injury or death that have become a charge against decedent's estate or that were paid by or on behalf of decedent, excluding amounts recoverable by a survivor who has paid those expenses

Important Exceptions to the above elements:

  • Adult children cannot recover lost parental companionship in medical malpractice claims

  • Parents of a deceased adult child cannot recover mental pain and suffering in medical malpractice claims
If you, like I, see no valid reason for these exceptions, let your Florida legislators know that you would like to see them eliminated.

(This excellent chart was prepared by Florida Attorney Matthew D. Levy)

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Contact us at 866-785-GALE or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals - the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.