Florida Injury Attorney Blawg
Understanding who may be eligible for compensation under the “Florida Wrongful Death Act,” sections 768.16 through 768.26, can be difficult, like piecing together a puzzle. Reproduced here is an easy to understand chart showing that information as well as the type of compensation that may be available. Of particular importance concerning these issues is Section 768.21 of the Act. It is that section which is broken down in the chart.
According to the Act, only statutory “survivors” and the decedent’s estate are eligible for compensation resulting from a loss caused by the intentional act or negligence of a third party. A Personal Representative, often the decedent’s family member, is appointed by the court to manage the estate after due notice to the survivors and other interested parties. The PR hires the attorney to prosecute the case to recover damages. While the survivors typically agree with the PR’s choice, they may hire their own attorney. The lawyer or lawyers will handle the case on a contingent fee basis.
The Act has survived many court challenges to its fairness. Many of its provisions are counter-intuitive and unfair. One of the most glaring faults involves an exemption for medical providers whose negligence caused death. (See Gigantic Loophole in Florida’s Wrongful Death Act.) Changes must come from the Florida Legislature.
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
Childrens’ 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 Surviving 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 for lost parental companionship or pain and suffering 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 toll free 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.