FLORIDA INJURY ATTORNEY BLAWG

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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