Florida Injury Attorney Blawg

When the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, including those occurring on navigable waters, a legal action to recover damages must be brought under the "Florida Wrongful Death Act" (Florida Statutes 768.16-768.26). This blog contains the elements of such a Wrongful Death Act case.

• Statute of Limitations: 2 years. Florida Statute Section 95.11(4)(d). A lawsuit must be filed within two years of the cause of the wrongful death being confirmed or suspected. Exception: 95.11(4)(b) - death arising from medical negligence may provide circumstances to extend the SOL. (See this blog: The Statute of Limitations (SOL) Under Florida's Wrongful Death Act.)
• Court of Competent Jurisdiction: Florida Circuit Court or Federal District Court if none of the defendants reside in Florida.
• Parties to the Lawsuit (Plaintiff): A Florida Wrongful Death Act case is brought by a court-appointed Personal Representative on behalf of "Survivors." Strict guidelines apply as to who is considered a survivor. (This blog outlines the guidelines.) The Personal Represenative may also be a survivor and is usually someone with a close connection to the decedent. The court may appoint a guardian ad-litem to protect the interests of minors and incompetent adults.
• Parties to the Lawsuit (Defendant): The case is brought against those thought to be responsible for causing the wrongful death. Defendants can be individuals, companies, and the government. Although insurance companies often pay the claims, unless the claim is for uninsured/underinsured motorist benefits, insurance companies are not defendants.
• Damages: Damages in a Florida Wrongful Death Act case is monetary compensation paid to survivors based on various measures. The principal measures are: mental pain & suffering; loss of the decedent's companionship and protection; past and future loss of support and services; and the payment of medical and funeral expenses. (See this blog for an outline of who is entitled to damages.)
• Pretrial Procedure: Florida Wrongful Death Act claims can be settled among the parties at any time. Many are settled before a lawsuit is filed. Others are settled after a lawsuit is filed but before the case goes to trial. The remainder can be settled during and after trial.
• Trial: Wrongful death cases not settled prior to trial are tried to a judge and jury. The judge rules on legal issues while the jury decides questions of fact.
• Post-trial: All rulings by the judge and the verdict can be appealed by either side. The threat of appeal by one side or the other is often what precipitates a post-trial settlement.