The Florida Wrongful Death Act:

The Florida Wrongful Death Act (Chapter 768, Florida Statutes) provides the legal framework for individuals to seek compensation when a loved one is killed due to the negligence, recklessness, or intentional actions of another person or entity. Under this statute, the survivors of the decedent may bring a lawsuit to recover damages for their loss.

The Florida legislature has outlined specific guidelines concerning who is eligible for compensation in the event of a wrongful death.

Those seeking specific information about who will be entitled to damages in the event of a wrongful death can find that in statute 768.21.  It should be noted several surprising exclusions can be found within that statute.

In Some Situations, Surviving Parents and Adult Children are Excluded by THE Florida Wrongful Death Act

Adult children of a decedent are excluded from seeking damages if the decedent has a surviving spouse according to Section 3 of the Florida Wrongful Death Act, Statute 768.21.

In Section 4 of the Wrongful Death Statute, surviving parents are excluded from seeking damages if the decedent has a surviving spouse and/or children.

There are several exclusions for cases of medical negligence as stated in Section 8 of the Florida Wrongful Death Act. In the case of a loss of a parent through medical negligence, adult children may not seek damages; in the case of a loss of an adult child due to medical negligence, surviving parents may not seek damages.

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Here’s an overview of the key components of the Florida Wrongful Death Act:

1. Who Can File a Wrongful Death Claim in Florida?

A wrongful death claim in Florida is typically filed by the personal representative of the deceased person’s estate. The personal representative may be named in the deceased person’s will or appointed by the court if the person did not have a will. The claim can be brought on behalf of the decedent’s surviving family members who have suffered financial, emotional, or other damages due to the loss.

Eligible family members (known as “survivors” under the law) who may be entitled to damages include:

• Spouse: The surviving husband or wife of the decedent.
• Children: The decedent’s biological or legally adopted children, including adult children, may be eligible to recover damages.
• Parents: If the decedent was a minor (under 25 years of age), the decedent’s surviving parents may bring a wrongful death claim.
• Siblings: In certain cases, if there are no surviving spouse or children, a sibling may be eligible to file a claim.

2. Who Can Be Held Liable for Wrongful Death in Florida?

The defendant(s) in a Florida wrongful death act claim can include:

• Individuals: A person whose negligence or intentional act caused the death.
• Businesses: A company or entity whose actions or negligence led to the death (e.g., a manufacturer of a defective product, a driver of a vehicle, or a medical provider).
• Government Entities: In some cases, governmental bodies or agencies may be liable, subject to sovereign immunity laws.
• Health Care Providers: Medical professionals or hospitals involved in negligent care that led to the decedent’s death (malpractice).

3. Types of Damages in Florida Wrongful Death ACT Claims

The Florida Wrongful Death Act allows the decedent’s survivors to recover both economic and non-economic damages. Damages vary based on the relationship between the survivor and the decedent, as well as the nature of the death.

• Survival Action (for the Estate):
  • Medical and funeral expenses incurred before death that the decedent’s estate paid.
  • Lost wages and lost earning capacity the decedent would have had, had they lived.
  • Pain and suffering experienced by the decedent before death.
• Survivors’ Damages (for the surviving family members):
  • Loss of support and services: Financial support and household services the decedent would have provided to the survivors.
  • Loss of companionship and protection: Emotional support, love, and companionship that the survivors lost due to the death.
  • Mental and emotional pain and suffering: Non-economic damages for the emotional distress experienced by survivors due to the death of a loved one.
  • Loss of parental companionship and guidance: If the decedent was a parent, the surviving children may be entitled to compensation for the loss of parental guidance, support, and love.
  • Loss of consortium: In the case of a surviving spouse, compensation for the loss of marital companionship, intimacy, and affection.

4. Who Receives the Damages?

• Spouse: A surviving spouse is typically entitled to a share of the damages, including for the loss of support, services, and companionship.
• Children: The decedent’s children may be entitled to compensation for the loss of parental guidance, companionship, and support, as well as financial losses.
• Parents: If the decedent was a minor or unmarried, the parents may receive damages for their loss, including emotional suffering.
• Estate: The decedent’s estate will receive compensation for medical bills, funeral costs, and the decedent’s pain and suffering.

5. Statute of Limitations

In Florida, there is a statute of limitations for filing a wrongful death claim. Generally, a claim must be filed within 2 years from the date of death. However, there are some exceptions to this rule, such as:

• Claims Against Government Entities: If the claim is against a government entity, the statute of limitations may be shorter (e.g., 6 months in some cases).
• Discovery Rule: If the cause of death was not immediately known (for instance, in cases of medical malpractice or product liability), the statute of limitations may be extended.

6. Burden of Proof

In wrongful death cases, the burden of proof is on the plaintiff (the survivors or the estate), who must prove that the defendant’s actions were the proximate cause of the decedent’s death. This generally involves showing:

• Negligence or wrongful conduct: The defendant’s actions were negligent, reckless, or intentional.
• Causation: The defendant’s actions directly led to the death.
• Damages: The survivors or estate have suffered financial and emotional harm as a result of the death.

Types of evidence that may be used in wrongful death claims include:

• Medical records
• Police reports (for fatal accidents)
• Eyewitness testimony
• Expert testimony (e.g., forensic specialists or accident reconstruction experts)

7. Comparative Negligence

Florida follows a comparative negligence rule, meaning that if the decedent or the survivors were partially at fault in the events leading up to the death, the damages can be reduced proportionally to their degree of fault. For example, if the decedent was partially responsible for their own death (e.g., in a car accident), the amount of damages awarded could be reduced by their percentage of fault.

8. Punitive Damages

In some cases, punitive damages (which are designed to punish the defendant and deter others from similar conduct) may be awarded in a wrongful death claim. However, punitive damages are generally only available if the defendant’s actions were grossly negligent, reckless, or intentional. For example, in cases involving DUI accidents, a court may award punitive damages against the at-fault driver if their conduct was particularly egregious.

• Florida law caps punitive damages in most civil cases to 3 times the compensatory damages or $500,000, whichever is greater. However, there are exceptions, especially in cases involving particularly reckless conduct.

9. FLORIDA Wrongful Death ACT and Insurance

The defendant’s insurance (auto, homeowner’s, business, etc.) may cover some or all of the damages in a wrongful death case, depending on the type of incident and the coverage in place. For example:

• Auto Insurance: If the wrongful death was caused by a car accident, the driver’s auto insurance may be responsible for compensating the survivors.
• Liability Insurance: If the death occurred in a premises liability case (e.g., slip and fall), the property owner’s liability insurance may provide compensation.

However, insurance companies often try to settle for as little as possible, so it is important to have legal representation to ensure fair compensation.

10. Why You Need an Attorney

Claims pertaining to the Florida Wrongful Death Act can be complex, and navigating the legal system can be overwhelming for grieving families. A skilled wrongful death attorney in Florida can help:

• Investigate the circumstances of the death
• Determine the liable parties
• Gather evidence and witness testimony
• Help survivors understand and pursue the full range of damages they may be entitled to
• Negotiate with insurance companies and opposing parties
• Represent the family in court, if necessary

The Florida Wrongful Death Act provides important legal avenues for families to seek justice and financial compensation when a loved one is killed due to another’s actions. Understanding the specific rules, timelines, and types of damages available is critical in ensuring a successful claim. Working with an experienced wrongful death attorney is essential to navigate this complex process and to maximize the recovery for surviving family members.