Florida Injury Attorney Blawg
Claims under Florida law for wrongful death are brought by the decedent’s personal representative for the benefit of the decedent’s survivors and estate. Florida Statute 768.20. A PR has the statutory authority to enter into wrongful death settlements. However, if the survivors dispute the settlement amount or apportionment, due process dictates that they be given the opportunity to present their positions in open court for a judicial determination. § 768.25, Fla. Stat. (2011); Walker v. Bailey, 89 So.3d 297 (Fla. 5th DCA 2012); Dudley v. McCormick, 799 So.2d 436, 441 (Fla. 1st DCA 2001); Pearson v. DeLamerens, 656 So.2d 217, 220 (Fla. 3d DCA 1995).
In the Walker case, the parents of a deceased 15 year old child disagreed as to how much each should receive from the wrongful death action settlement. The decedent’s mother had been appointed PR. She petitioned the court for an apportionment in her favor and set the matter for hearing. The father did not respond to the petition. Before the matter was heard, the judge issued an order awarding 100% of the money to the mother. The father moved for a rehearing, arguing the right to present evidence regarding distribution. The court summarily denied the motion. An appeal to the 5th DCA followed. The DCA reversed the lower court’s ruling and remanded (sent back) with instructions to the trial judge to take evidence on the matter.
The appellate court stated:
The Florida Constitution guarantees every citizen due process for the protection and enforcement of rights and property interests. Art. 1, § 9, Fla. Const.; J.B. v. Fla. Dep’t of Children & Family Servs., 768 So.2d 1060 (Fla.2000). Due process requires fair notice and a meaningful opportunity to be heard and is a flexible concept that calls for procedural protections specific to each circumstance. Schimenti v. Sch. Bd. of Hernando Cnty., 73 So.3d 831, 833 (Fla. 5th DCA 2011); Carillon Cmty. Residential v. Seminole Cnty., 45 So.3d 7 (Fla. 5th DCA 2010).
A cautionary note: Litigants can default or waive rights by failing to respond to claims and allegations. For example, the failure to answer a Complaint can result in a default against the defendant. If the Complaint seeks liquidated or ascertained damages, judgment can be entered for the claimed award without further notice to the defendant, while damages should not be awarded without the presentation of evidence at a duly noticed hearing where general damages are requested. In the Walker case, the mother’s petition requested general damages instead of a specific percentage or sum. In stating that the father did not waive his due process rights by failing to respond in writing to the petition before the hearing, the DCA appeared to attach some significance to this distinction between general and specific damages, thus raising the possibility that the father would have been shut out if the mother’s petition had sought specific damages. This may be reading too much into the court’s opinion, but there’s no reason to take a chance. File a responsive pleading.
Other Wrongful Death blogs:
Role of Personal Representative in Florida Wrongful Death Cases
Outline of Compensation for “Survivors” Under Florida’s Wrongful Death Act
What is the Statute of Limitations (SOL) Under Florida’s Wrongful Death Act
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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.
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