Articles Posted in Wrongful Death

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Think of an injury case like navigating a ship from one port to another. Signing up the case is the equivalent of throwing off the ropes and pulling safely away from the dock. Being at sea is analogous to litigation. Some days you will eat the bear and some days the bear will eat you. Stay your course. Invariably, chart adjustments will be necessary, but the final destination always remains the same: favorable resolution of the case. Settling the case equates to pulling into port. However, it is not the last act. The ship must be successfully docked and secured. The Settlement Release is part of this final act. It must be done properly to avoid damaging the ship.

Our law firm handles both workers’ compensation and personal injury/wrongful death cases. It is not uncommon to have both types of cases arising out of one accident. For example, we represent a gentleman who suffered numerous catastrophic injuries in a motor vehicle crash. Since the accident happened in the course and scope of his employment, he was covered under workers’ compensation. We recently settled the workers’ compensation case. The common law liability case, against the second vehicle’s owner and our client’s co-worker [brought under a theory of gross negligence to overcome workers’ compensation immunity], remains ongoing.

As part of the workers’ compensation mediated settlement, the workers’ compensation carrier agreed that the settlement did not affect the liability case against the third party or the co-worker. Nevertheless, the General Release it submitted to us contained wording that could be construed as preventing our client from proceeding against the co-worker. We have reworded it to avoid this outcome.

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cemetery1We are representing the surviving spouse of an elderly gentleman who fell and broke his hip due to the negligence of a condominium association. While hospitalized for the serious injury, he contracted Covid 19 and died. Our claim against the condo association is for his wrongful death rather just for the broken hip. We are doing so on the authority of Stuart v. Hertz Corp., 351 So.2d 703 (Fla. 1977).

In Stuart v. Hertz Corp., 351 So.2d 703 (Fla. 1977), a car crash victim’s injuries were made worse by the negligence of a treating doctor. The victim was allowed to claim damages for the enhanced injuries from the parties liable for the underlying car crash case.

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dollarsIt is common for health and disability (lost wages) insurance companies to pay benefits to their insureds who have been injured through the negligence of others. Most of the insurance policies contain language granting the insurance company a right of reimbursement for the money it has paid out from the proceeds recovered by the insured in the personal injury case for the same losses.

How much must be repaid depends on policy language and who is paying the settlement or judgment in the personal injury case.

Many of the insurance policies provide that the carrier has the right to be reimbursed in full up to the amount recovered in the liability case before the insured and the insured’s attorney receive penny one. When the compensation is paid by a tortfeasor, who is the person or entity responsible for causing the harm, reimbursement is determined by the formula set forth in  section 768.76(4), Florida Statutes. The statutory formula applies even where the insurance policy calls for full reimbursement to the carrier first. In Ingenix v. Ham, 35 So.3d 949 (Fla. 2nd DCA 2010), Gerald Ham’s health insurer, UnitedHealthcare, paid almost all of Ham’s medical bills relating to a medical procedure that ultimately resulted in his death. After settling with the medical providers (i.e., tortfeasors) in a medical malpractice lawsuit, Ham’s estate contended that it was only required to reimburse UnitedHealthcare a reduced amount according to the formula set out in section 768.76(4), Florida Statutes (2008). UnitedHealthcare took the position that it was entitled to full reimbursement in accordance with the language of its policy. The court held that section 768.76(4) controlled, limiting UnitedHealthcare’s reimbursement to the formula under section 768.76(4).

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scales-of-justice-300x203Under Florida law, only individuals meeting the definition of “Survivors” under Florida’s Wrongful Death Act may be compensated for losses resulting from the death of another person. (See this blog, Florida Wrongful Death Survivors Chart, for a handy reference to benefits available under the Act.)

Under section 768.18(1) of the Act, survivors are defined as: 

the decedent’s spouse, children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It includes the child born out of wedlock of a mother, but not the child born out of wedlock of the father unless the father has recognized a responsibility for the child’s support.

In January 2011, Richard Wiederhold was immediately rendered a quadriplegic in a motor vehicle crash. One month later he sued Domino’s Pizza as being responsible for the crash. Several months later he married his girlfriend. In March 2012, Mr. Wiederhold died, and his now-wife, Mrs. Wiederhold, as personal representative of his estate, was substituted as the plaintiff. She then filed an amended complaint to include a claim for wrongful death damages as Mr. Wiederhold’s surviving spouse.

Mrs. Wiederhold received a favorable jury verdict. Domino’s appealed, arguing that because Mrs. Wiederhold was not married to Mr. Wiederhold at the time of the accident, she was not a surviving spouse under the Act.

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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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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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