Articles Posted in Wrongful Death

funeralWe have blogged at length regarding the decision-making role of estate Personal Representatives with regard to the allocation of monetary proceeds recovered from at-fault parties and under/uninsured motorist insurance. Where the amount recovered is less than the full measure of damages, disputes often arise between creditors and the decedent’s survivors over the PR’s allocation decisions. When those disputes cannot be resolved by agreement, the courts must decide. While Florida’s Wrongful Death Act does not articulate preferences, our experience shows that courts tend to side with survivors in close cases.

In re Estate of Wiggins, 720 So. 2d 523 (Fla. 4th DCA 1999) is the seminal allocation case. It involved six adult surviving children and various creditors (owed a total of $26,000), including Indian River Memorial Hospital, vying over a $100,000 settlement. The matter was forced to trial, where the trial court agreed with the PR’s allocation which left creditors with nothing. The lower court’s ruling was upheld on appeal.

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Not infrequently, the amount of money available following a wrongful death scalesaccident to fully satisfy outstanding debts (e.g., medical bills, funeral expenses, credit cards) and compensate survivors for their loss is inadequate. Where the settlement [in the wrongful death claim] is less than the full value of the claim, the personal representative is charged with employing a reasonable and equitable method of apportioning the distribution of settlement proceeds among the survivors and the estate. See In re Estate of Wiggins, 720 So. 2d 523 (Fla. 4th DCA 1999).

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funeral.jpgFlorida’s Wrongful Death Act is the blueprint for who can be compensated when the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person or corporation. The Act refers to those who are eligible for compensation as “survivors.” See

Every Florida legal action arising from the death of a person caused by the negligence of another person is guided by the “Florida Wrongful Death Act” (Sections 768.16-768.26), various other statutes, and case law. This blog touches on the considerations common to most Florida wrongful death actions.

  • Statute of Limitations: Pursuant to Florida Statute Section 95.11(4)(d) an action for wrongful death must commence within two years of death. Section 95.11(4)(b) describes an exception for cases involving medical malpractice. (For a further discussion of this topic, read this blog: The Statute of Limitations (SOL) Under Florida’s Wrongful Death Act.)
  • Court of Competent Jurisdiction: Most Florida wrongful death claims are brought in state circuit courts. Regarding venue, Florida Statue, 47.011 provides that “Actions shall be brought only in the county where the defendant resides, where the cause of action accrued…. This section shall not apply to actions against nonresidents.” If none of the defendants reside in or have a principal place of business in Florida, the action must be brought in federal court. This is known as diversity of jurisdiction.
  • Parties to the Lawsuit (Plaintiff): Florida WD actions are prosecuted by court appointed personal representative(s) for the benefit of the decedent’s statutorily defined “survivors.” (Link to this blog, Florida Wrongful Death Survivors Chart, for detailed information on the subject of survivors.) The court appointed PR is often a survivor, such as an adult child or parent. Where a survivor is a minor or incompetent adult, the court may also appoint a

cemetery1.jpgUnderstanding 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

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doctor.jpgIs the loss of a loved one by medical malpractice less painful and catastrophic than such a loss by some other form of negligence? Either the Florida Legislature thinks so, or else it purposely created an arbitrary and capricious law to insulate medical providers from being held fully accountable for their negligence. The law in question is Section 768.21, of Florida’s Wrongful Death Act.

768.21 says who can make a civil damage claim arising from the death of a loved one through the negligent act of another party. Subsection (3) provides that “[M]inor children of the decedent and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury.” Subsection (4) declares that “[E]ach parent of an adult child may also recover for mental pain and suffering if there are no other survivors.”

(Florida Statute 768.18 defines “minor children” as children under 25 years of age, notwithstanding the age of majority.)
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cemetery1.jpgAny cause of action, or lawsuit, arising in Florida from the death of an individual caused by the wrongful act or negligence of any person or entity is controlled by the “Florida Wrongful Death Act” (Sections 768.16-768.26). This blog describes some key wrongful death claim considerations.

  • Statute of Limitations: Florida Statute Section 95.11(4)(d) instructs that an action for wrongful death must commence within two years of death. Section 95.11(4)(b) describes when the SOL can be extended beyond 2 years where the WD resulted from medical negligence. (Read this blog: The Statute of Limitations (SOL) Under Florida’s Wrongful Death Act.)
  • Court of Competent Jurisdiction: Typically, WD claims are brought in state circuit courts. Regarding venue, Florida Statue, 47.011 provides that “Actions shall be brought only in the county where the defendant resides, where the cause of action accrued…. This section shall not apply to actions against nonresidents.” If none of the defendants reside in or have a principal place of business in Florida, the action must be brought in federal court.
  • Parties to the Lawsuit (Plaintiff): Florida WD actions are prosecuted by court appointed personal representative(s) on behalf of the decedent’s statutorily defined “survivors.” Link to this blog (for an outline of the “survivors” list.) The court appointed PR is often a survivor, like an adult child or a parent. The court may also appoint a guardian ad-litem for minors and incompetent adults.
  • Parties to the Lawsuit (Defendant): Defendants in WD actions are the individuals and entities who are alleged to be at-fault.
  • Damages: Making defendants pay monetary compensation to the survivors for their loss is how defendants are punished under our civil justice system. The amount of compensation, or damages, is determined by examining such elements as mental pain & suffering, loss of the decedent’s companionship and protection, past and future loss of support and services, and medical and funeral expenses. (Read this blog to see an outline of the damages available under the Act.)
  • Pretrial Procedure: Florida Wrongful Death Act claims can be settled by the parties at any time, even pre-suit. Some are settled after the lawsuit has been filed, but before or during trial. Some are dismiised by the court. The remainder go to final verdict.
  • Trial: Wrongful death cases are typically tried to juries, although judges can be chosen to act as the finder of fact. Judges make legal rulings, juries make factual determinations.
  • Post-trial: All rulings by judges and juries can be challenged on appeal. The threat of appeal sometimes precipitates settlement.

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law books.jpgWhen a person dies from an accident in Florida, who, if anyone, can be compensated for the loss is prescribed by statute in Florida’s Wrongful Death Act, Sections 768.16-768.26. The Act refers to those who are eligible as “survivors.”

The survivors list can be inequitable. For example, under some circumstances parents and children are barred from recovering for the painful loss of a loved one caused by the negligence of a wrongdoer. (See this blog for the survivors list broken down into chart form: Outline of Compensation for “Survivors” Under Florida’s Wrongful Death Act.)

Odd as it sounds, Florida wrongful death claims are not brought by statutory survivors. Rather, they are brought by Personal Representatives on behalf of survivors. WD actions are filed in the PR’s name, and the PR chooses the lawyer to handle the case. (While individual survivors can hire separate counsel to protect their interests, it is the PR and the PR’s chosen attorney who essentially control the course of the action.)

The PR can be a survivor. This may seem like an unworkable conflict, however, Florida laws and judges do an excellent job of policing cases to avoid problems. PRs have a serious fiduciary duty to apportion the proceeds of any recovery in a reasonable and equitable manner to each survivor. Section 733.602 Florida Statutes ; In re Estate of Wiggins, 729 So.2d 523 (Fla. 4th DCA 1999); Continental National Bank v. Brill, 636 So.2d 782 (Fla. 3rd DCA 1994); University Medical Center v. Ziegler, 625 So.2d 125 (Fla. 5th DCA 1993); Guadalupe v. Peterson, 779 So.2d 494 (Fla. 2nd DCA 2000); and Thompson v. Godson, 825 So.2d 941 (Fla. 1st DCA 2002) review denied 835 So.2d 266 (Fla. 2002). Failing to do so properly is messing with fire.
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people.jpgFlorida’s Wrongful Death Act, located in sections 768.16 through 768.26 of Florida’s statutes, controls legal actions arising from the loss of life on account of a tortfeasor’s negligence. The Act refers to those who may recover damages for the loss as “survivors.”

Survivors can be spouses, children and parents. The Act allows survivors to recover the decedent’s medical expenses and future lost earnings and accumulations, and to be compensated for their own mental anguish.

Needless to say, the loss of a parent or child causes substantial mental anguish. Inexplicably, Florida’s Legislature has carved out an exception for mental anguish damages caused by medical negligence. Specifically, the Act bars

  • compensating adult children for mental anguish caused by the death of a parent
  • compensating parents for mental anguish caused by the death of an adult child

Since section 768.18(2) of the Florida Statutes defines minor children as being children under 25 years of age, notwithstanding the age of majority, the Wrongful Death Act’s exceptions apply in the case of children 25 years of age and older.

These exceptions are arbitrary and capricious. Unfortunately, they have been upheld by the Florida Supreme Court. See Mizrahi v. North Miami Medical Center, Ltd., 761 So. 2d 1040 – Fla: Supreme Court 2000.

In addition to depriving survivors of their rightful due, these outrageous exceptions create a dangerous environment for many people who receive medical care in Florida. Strong and fair medical negligence laws demand accountability from providers and facilities. This promotes quality care. Weak laws allow the opposite. Making matters worse, the exceptions create a financial incentive for death as the prefered outcome following a serious malpractice event. Under Florida’s civil justice system, those who survive their medical malpractice injuries can be far costlier than those who do not. Because money has a way of making people do rotten things, this is a troubling scenario.
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scales of justice.jpgClaims 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.
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