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Wrongful Death Damages

According to the Centers for Disease Control, death by accident was the fifth leading cause of death in the United States in 2009. While there are other causes of accidental death such as falls, drowning, smoke inhalation, poisoning and gunshot wounds, motor vehicle traffic accidents remain the leading cause of injury death in the United States. Given these statistics, it’s no surprise that most wrongful death cases that a law firm handles arise out of motor vehicle accidents.
Florida has a wrongful death act, F.S. 768.16 – 768.26 to address the rights of surviving family members when loved ones have died due to the intentional or negligent acts of others. As stated in section 768.17 the policy behind the Wrongful Death Act is to shift the burden of loss from the survivors to the wrongdoer. One of the first inquiries that an attorney makes when he has been hired to handle a wrongful death case is to determine who are the “survivors” of the decedent as the potential damages to the survivor(s) depends on their respective relationships to the decedent. Under the Act, “survivors” means 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. §768.18 (1).

Loss of a spouse: Under section 768.21 a surviving spouse under the Wrongful Death Act is entitled to recover “the value of lost support and services from the date of the decedent’s injury to the date of his or her death, with interest, and future loss of support and services from the date of death and reduced to present value. “Support” includes contributions in kind as well as money. “Services” means “tasks, usually of a household nature, regularly performed by the decedent that will be a necessary expense to the survivors of the decedent. See §768.18 (4). Under 768.21 (2) the surviving spouse may also recover for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury. The spouse may also be entitled to recover the medical or funeral expenses due to the decedent’s injury or death if she has paid them. Note that evidence of remarriage of the decedent’s spouse is admissible at any wrongful death trial. See 768.21 (6)(c).

Loss of a child: A parent who has lost a child is entitled to recover the value of lost support and services from the date of the child’s injury to her or his death, with interest, and future loss of support and services from the date of death and reduced to present value if the parent can establish that they were in fact dependent on the child for support or services. This element of damage is limited to what the deceased child would have contributed in lost support and services to the parent(s) from date of injury or death until the child’s 25 birthday, which is the age of majority under the Act. See e.g., Roberts v. Holloway, 581 So. 2d 619 (Fla. 4th DCA 1991). Each parent of a deceased minor child is also entitled to recover for mental pain and suffering from the date of injury and there is no limitation on the number of years for which such pain and suffering may be claimed by the parent. However, the parent of a deceased adult child is not entitled to recover for mental pain and suffering unless there are no other survivors. The parent of a deceased child, regardless of the child’s age at death, may also be entitled to recover the medical or funeral expenses due to the decedent’s injury or death if she has paid them.

Loss of a parent: While all children of the decedent are potential survivors under the Act, not all surviving children are treated equally under the Act. For example, while Section 768.21(1) provides that each survivor is entitled to recover the value of past and future lost support and services, an adult child will be hard pressed to prove that they were dependent on their parent for such support and services unless for example they were living under their parent’s roof due to their own disability. An adult child will also not be entitled to damages for lost of parental companionship, instruction and guidance and mental pain and suffering for the loss of their parent unless there is no surviving spouse. See §768.2(3). Even when there is no surviving spouse, if the decedent died as a result of medical malpractice, an adult child cannot recover for lost parental companionship, instruction and guidance or for mental pain and suffering damages. See §768.21(8). Minor children, on the other hand, regardless of whether there is a surviving spouse (and regardless of whether their parent died due to medical malpractice) are entitled to recover for lost parental companionship, instruction and guidance and protection and mental pain and suffering from the date of injury. §768.21(3). Furthermore, because a minor child will usually be financially dependent on the deceased parent, the child will be entitled to past and future lost support and services damages up to age 25 per section768.21(1). There is no limitation on the number of years a minor child can claim for mental pain and suffering. The courts have interpreted the Wrongful Death Act as providing that the minor child’s pain and suffering should be based on the joint life expectancies of the child and the deceased parent. See e.g., Estate of McCall v. U.S., 663 F. Supp. 2d 1276 (N.D. Fla. 2009).
Any child, regardless of age, may also be entitled to recover the medical or funeral expenses due to their parent’s injury or death if they have paid them. §768.21(5).

Loss of a blood relative: Survivors under the Act include “blood relatives and adoptive brothers and sisters” but only when partly or wholly dependent on the decedent for support or services. §768.18 (1). If, for example, you lived with your Uncle Joe and were dependent upon him for support and services, you could recover the value of such support and services upon Uncle Joe’s death. There is no provision under the Act, however, for the recovery of damages for loss of companionship and protection, instruction or guidance, or for mental pain and suffering as a result of the death of a blood relative who is not your parent or child.

Recovery by the Estate: The Estate of the decedent has a separate and distinct recovery from that of the survivors. See §768.21(6). First, the Estate may recover loss of earnings of the decedent from the date of injury to the date of death, less the amount of lost support of survivors (excluding contributions in kind) with interest. See §768.21(6)(a). And, second, the Estate may recover loss of prospective “net accumulations” which might reasonably have been expected but for the wrongful death, reduced to present money value, if the decedent’s survivors include a surviving spouse or lineal descendants; or if the decedent is not a minor child and there are no lost support and services recoverable, and, there is a surviving parent. “Net accumulations” means the part of the decedent’s expected net business or salary income, including pension benefits, that the decedent probably would have retained as savings and left as part of her or his estate if the decedent had lived her or his normal life expectancy. §768.18(5).
Note that the personal representative is the only individual entitled to bring a wrongful death lawsuit. The personal representative brings the lawsuit on behalf of all survivors and the estate. See §768.20. The reason for this rule is to eliminate the possibility of a multiplicity of suits by competing beneficiaries and avoid a race to judgment. Hess v. Hess, 758 So.2d 1203 (Fla. 4th DCA 2000).