Articles Posted in Wrongful Death

When 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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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.
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Florida Statute 768.21(8) bars adult children (25 and above) from recovering for lost parental companionship, instruction, and guidance and for mental pain and suffering resulting from the death of a parent through medical malpractice. See Florida Statute 768.18(2) for the definition of minor children. The preclusion is an exception to the rights of survivors as set forth in 768.21(3). (See this blog for a handy breakdown of 786.21: Outline of Compensation for “Survivors” Under Florida’s Wrongful Death Act.)

The exception is outrageous, the consequence of powerful business interests putting Profits Before People. It has been challenged. The challengers have been defeated. See Mizrahi v North Miami Medical Center, Ltd., 761 So.2d 1040 (Fla. 2000). Florida is the only state in the union with this primitive exception.

Is there another way for adult children to obtain justice through the civil justice system? At least one South Florida lawyer claims to have obtained a high six-figure confidential settlement under the theories of fraud and intentional infliction of emotional distress.

The elements of a cause of action for fraud are:

1. Defendant made a false statement regarding a material fact;
2. Defendant knew or should have known the representation was false;
3. Defendant intended that the representation induce plaintiff to act on it; and
4. Plaintiff suffered damages in justifiable reliance on the representation.

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In Florida, civil (in contrast to criminal) claims for wrongful death are made under the provisions of the Wrongful Death Act, laid out in Sections 768.16-768.26 of Florida’s statutes. The Act prescribes the types of damages available for wrongful death and the circumstances by which they may be recovered.

Only survivors and the decedent’s estate may recover damages under the Act.

Wrongful death claims are brought through the decedent’s estate. Following death, an estate is opened in Probate Court and is used thereafter as the vehicle for pursuing claims. A Personal Representative, typically a family member of the decedent or some other trusted individual, is appointed by the court to probate the estate.

Probating an estate encompasses many responsibilities, one of the most important of which is serving the interests of the decedent’s survivors under the Wrongful Death Act.

Survivors (children, spouse, and parents) are not allowed to bring separate lawsuits, or legal actions, against the at-fault party. Rather, their individual claims are brought in one action by the PR through the estate. The PR selects the lawyer to prosecute the wrongful death claims.

PRs have a fiduciary duty to each survivor. See, Section 733.602 Florida Statutes and In re Estate of Wiggins, 729 So.2d 523 (Fla. 4th DCA 1999). Among other things, the fiduciary duty requires PRs to apportion the proceeds for survivors and the estate in a reasonable and equitable manner. 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).
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Who can be compensated and the types of damages that are available when a person dies through the wrongful act or negligence in Florida of any person or company is prescribed by statute in the “Florida Wrongful Death Act,” sections 768.16 through 768.26. The chart below is a breakdown of section 768.21.

Wrongful Death claims are brought on behalf of statutory “survivors” by the Personal Representative of the decedent’s estate. The Personal Representative, typically a family member and often a survivor, is appointed by the court after due notice is given to all interested parties. The Personal Representative hires the attorney who will bring a claim to recover damages for the decedent’s estate and survivors. Florida wrongful death attorneys handle these cases on a contingent basis, meaning that attorney’s fees are paid only after a successful recovery has been made in the case. The standard within the legal industry is for the fee to be a percentage of the overall recovery, rather than being based on an hourly rate.

Who may recover under the Act and to what extent varies according to the circumstances of each case and can be confusing. There have been many legal challenges to the Act, yet it has survived all challenges essentially intact. At this point in time, it will take action from the Florida Legislature to change the Act.

The goal of this blog is to make the Act understandable. The chart shows the types of damages that can be recovered and by whom. Many of the variations and exceptions are counterintuitive and unfair. For example, a surviving spouse will preclude the recovery of any damages by the decedent’s parents. In addition, the Act gives special consideration to medical providers, in some instances putting them beyond the reach of the law for causing death by medical negligence/malpractice.

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

Children’s 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 Surving 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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Little known by most lay people is that every plaintiff involved in litigation, even those who appear to walk away with favorable judgments, may be subject to court sanctions in the form of paying the defendant’s attorneys fees.

The sanction can be imposed under Florida Rule of Civil Procedure 1.442, known as the Proposal for Settlement rule. Under the PFS rule, if the plaintiff refuses a pretrial offer for 25% more than the case is worth, the plaintiff may have to pay the defendant’s attorneys fees incurred from the date of the offer through the trial of the case. (For purposes of this topic, the worth of a case is the amount of the final judgment. A final judgment is not the same thing as a verdict.)

The courts appear to have found an exception to the PFS rule for survivors in cases brought under Florida’s Wrongful Death Act.

In Kadlecik v. Haim, 79 S03d 892 (Fla. 5th DCA 2012), the court gave the following explanation for the exception:

Under Florida’s Wrongful Death Act, an estate’s personal representative brings all claims on behalf of both the estate and the decedent’s survivors. §§ 768.16-.26, Fla. Stat. (2010). The personal representative has the exclusive authority to conduct litigation and settle all claims. Thompson v. Hodson, 825 So. 2d 941 (Fla. 1st DCA 2002); Pearson v. DeLamerens, 656 So. 2d 217 (Fla. 3d DCA 1995). The survivors are not parties to the wrongful death litigation, even when the claims are brought for their benefit. Accordingly, it is error to award attorneys’ fees against the survivors because the personal representative is the only person with authority to settle the claim and the individual survivors cannot be fairly said to have rejected an offer of settlement. See Beseau v. Bhalani, 904 So. 2d 641, 642 (Fla. 5th DCA 2005) (holding that entry of judgment against survivor was erroneous as, despite being individually named on complaint, she was not proper party to proceeding); Thompson, 825 So. 2d at 952 (holding that attorneys’ fees cannot be assessed against survivors in wrongful death action based on offer of judgment since personal representative alone has authority to settle and survivors cannot be said to have rejected offer of settlement).

Is the exception foolproof? At least one Florida lawyer, the renowned Dale Swope, of Swope, Rodante, P.A., in Tampa, has doubts. (His article on the subject is contained in the March/April 2012 #559 edition of the Journal, a magazine published for members of the Florida Justice Association.)
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Read together, Florida Statute Section 95.11(4)(d) and Section 95.031(1) provide that an action for wrongful death, under Section 768.21 (known as Florida’s Wrongful Death Act), must be commenced within two (2) years of when the last element constituting the cause of action occurs. This is a strict standard that does not take into account the “delayed discovery” doctrine.

The “delayed discovery” doctrine tolls the statute of limitations until the plaintiff either knows or should know that the last element of the cause of action occurred. The only type of wrongful death action to which the doctrine applies and thus tolls the statute of limitations is one arising from medical negligence. See Section 95.11(4)(b). No other type of wrongful death claim is so tolled.

For example, in Raie v. Cheminova, Inc., 336 F. 3d 1278 – Court of Appeals, 11th Circuit 2003, a wrongful death claim based on products liability was barred even though the Personal Representative did not learn of the cause of death until four years after the decedent’s death.

Although not pertinent to wrongful death claims, the other types of actions to which the doctrine applies are:

• Claims of fraud.
• Products liability claims that result in injury but not death.
• Professional malpractice (95.11(4)(a))
• Intentional torts based on abuse (95.11(7)).

See Davis v. Monahan, 832 So.2d 708 (Fla., 2002).
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Who can be compensated and the types of damages that are available when a person dies through the wrongful act or negligence in Florida of any person or company is prescribed by statute in the “Florida Wrongful Death Act,” sections 768.16 through 768.26. The chart below is a breakdown of section 768.21.

Wrongful Death claims are brought on behalf of statutory “survivors” by the Personal Representative of the decedent’s estate. The Personal Representative, typically a family member and often a survivor, is appointed by the court after due notice is given to all interested parties. The Personal Representative hires the attorney who will bring a claim to recover damages for the decedent’s estate and survivors. Florida wrongful death attorneys handle these cases on a contingent basis, meaning that attorney’s fees are paid only after a successful recovery has been made in the case. The standard within the legal industry is for the fee to be a percentage of the overall recovery, rather than being based on an hourly rate.

Who may recover under the Act and to what extent varies according to the circumstances of each case and can be confusing. There have been many legal challenges to the Act, yet it has survived all challenges essentially intact. At this point in time, it will take action from the Florida Legislature to change the Act.

The goal of this blog is to make the Act understandable. The chart shows the types of damages that can be recovered and by whom. Many of the variations and exceptions are counterintuitive and unfair. For example, a surviving spouse will preclude the recovery of any damages by the decedent’s parents. In addition, the Act gives special consideration to medical providers, in some instances putting them beyond the reach of the law for causing death by medical negligence/malpractice.

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

Children’s 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 Surving 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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