WHAT ARE THE POSSIBLE CLAIMS FOR WRONGFUL DEATH IN FLORIDA?
In the case of a death due to somebody else’s fault, which lawyers call “wrongful death”, there are two basic kinds of money claims. These are economic damages and non-economic damages. Different rules apply to each kind. Economic damages are those things which have a value that can be measured in prices of things in the market place. Things like medical and funeral bills, and the cost of services. Non-Economic damages are things that don’t have a market price, like pain and suffering.
Only certain relatives listed in the wrongful death statute can get any money for the loss of a loved one. These include the husband or wife of the deceased person, but not a fiancé, common law spouse, or ex-spouse, even if they have children with the deceased. The children of the deceased have a claim in most cases. The parents of the deceased have a claim in some cases.
Florida’s law about what can be claimed is different from many other States. Many States allow the family to sue for the pain and suffering of the deceased. This is known as a “survival action”. Florida law does not allow such a claim. It says: “When a personal injury to the decedent results in death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate.” Florida Statutes Section 768.20 (2003).
On the other hand, Florida law allows the surviving spouse and children, or parents of deceased minor children to recover for their grief for the loss of their loved one. Florida Statutes Section 768.21 (2003). For the Florida wrongful death law, a “minor” is defined as a person under twenty-five years of age. Many other States do not allow such a claim for bereavement.
This wrongful death law also provides that the surviving spouse may also recover for loss of the deceased spouse’s companionship and protection. Minor children, and all children if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance. The damages recoverable by a minor child should be calculated based on the joint life expectancies of the minor child and the deceased parent, not just until the child is an adult. If a parent dies and is survived by a spouse and by a child younger than age 25 and a child 25 or older, the law causes an unfair result that allows the child under 25 to recover for a lifetime pain and suffering for the loss of the parent, while the other child only a few years older is entitled to no recovery at all.
Spouses, children, and parents in some cases, can recover the value of the support and services they no longer will receive from the deceased.
Medical or funeral expenses due to the decedent's injury or death may be recovered by a whoever who has paid them.
A claim may also be made for loss of earnings of the deceased from the date of injury to the date of death, less the amount claimed for lost support of survivors. Loss of future savings and gains from investments, which might reasonably have been expected but for the wrongful death, can be recovered in some cases by heirs.
WHO MAY MAKE A CLAIM FOR WRONGFUL DEATH?
In Florida, before a claim can be made for the death of a relative, a petition must be filed in the probate court and the court must appoint a person, usually the next of kin, to be the “personal representative” of the deceased persons’ estate. The personal representative is the only person who can hire the lawyer who is authorized to file a lawsuit against the wrong-doer.
“The action shall be brought by the decedent's personal representative, who shall recover for the benefit of the decedent's survivors and estate all damages, as specified in this act, caused by the injury resulting in death.” Florida Statutes Section 768.21 (2003).
The survivors may have reason to be in conflict between themselves. For example, sometimes the person who died was married to one person and had children with another person who is raising the children. The spouse and the children are not living together and they have different losses and needs which have to be evaluated and presented. The personal representative must make claims for all of them. The court will appoint an unrelated person, called a “guardian ad litem”, to review any proposed settlement and advise the court what is in the children’s best interest. The guardian ad litem in death cases is usually a lawyer. If the lawsuit settles, the court must apportion how much each survivor receives. Sometimes it will be necessary for the survivors and the personal representative to be represented by different lawyers.
WHAT IF THE DECEASED OWED MONEY TO OTHERS?
The deceased person’s debts cannot be recovered from wrongful death money recovered for the survivors. See Estate of Barton v. Poole, 631 So. 2d 315, 316 (Fla. 2d DCA 1994). When the case is settled, the money which is for the non-economic damages and the economic damages of the survivors is paid directly to the survivors. Only money received for economic damages of the estate, such as unpaid medical and funeral bills and loss of future savings and investment gains, is put into the probate court where creditors of the deceased can make claims against it.
However, laws and insurance contracts give special rights to repayment, called “liens”, to some companies who paid medical bills or paid benefits to survivors. These liens are on all proceeds of a settlement, even the portion which is for the surviving relatives. Such liens include Medicare, Medicaid, health insurance, government hospital, and workers compensation benefits. But payments by automobile PIP and Med Pay insurance and life insurance proceeds do not have to be repaid.
WHAT IF THE WRONG-DOER DOES NOT HAVE ENOUGH INSURANCE?
Many automobiles in Florida are uninsured, or have a very low amount of insurance. Also many doctors and lawyers are not insured for malpractice. By law, all city, county and state agencies, and their employees, are only liable for injuries and death up to $100,000 per person, $200,000 per accident. So in the case of death or serious personal injury, there often is not enough insurance. Suing a person who does not have enough insurance is usually a waste of time and money in Florida. This is because Florida has laws which make it easy for people to protect their assets from forced sale in the event of a big judgment against them. Property in joint names with a spouse, a person’s home, leased automobiles, retirement plan investments, cash value life insurance and annuities, and other special investments are exempt from the claim of a personal injury or wrongful death lawsuit. Wages of the head of a household are partially protected. So even people who live very well are very difficult to collect from. Wage earning people are never able to pay a large judgment.
SHOULD I BUY UNINSURED MOTORIST COVERAGE?
If a person is injured or killed by a negligent driver who doesn’t have enough insurance to pay the full value of the claim, the victim can make a claim against the uninsured motorist insurance, which also covers situations where the negligent driver has some insurance but not enough. The victim would be covered under his or her own insurance policy, as well as the policy on the automobile he or she was riding in. But only if uninsured motorist coverage was purchased. Unfortunately, many people do not realize it is important to purchase uninsured motorist coverage. It is usually less expensive than liability coverage, which protects the other person. Since most people do not have to worry about a judgment against them because of the laws protecting their assets, they would be better off to spend more money on uninsured motorist coverage than on liability coverage. Some liability coverage must be purchased in order to purchased uninsured motorist coverage.