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Can I Sue for Wrongful Death in Florida?

by | Sep 7, 2020

Thousands of people tragically die every year in Florida from injuries they sustain in entirely avoidable accidents. After their deaths, family members and loved ones may be left wondering whether they have any legal recourse to hold the at-fault parties accountable for their negligence or wrongful acts. In other words, can they sue for the wrongful death of their loved one?

In short, those whose negligence or wrongful acts caused the death of another person can be held legally accountable for their actions. But the situation on the ground is more nuanced than that.

We can better understand how wrongful death claims work and whether you can sue if we think of our larger question (“Can I sue for wrongful death?”) as composed of three smaller questions:

  1. What is the purpose of a wrongful death lawsuit?
  2. Who can initiate a wrongful death lawsuit?
  3. How are “bringing a lawsuit” and being “a party to a lawsuit” different?

Let’s dig into these three questions one at a time.

What Is the Purpose of a Wrongful Death Lawsuit?

We can’t know what a wrongful death lawsuit is for if we don’t have a good definition of wrongful death. For this, we must look to Section 768.16–768.26, Florida Statutes, known as the “Wrongful Death Act,” which statutorily defines wrongful death as a death,

caused by the wrongful act, negligence, default, or breach of contract or warranty of any person…[provided that] the event would have entitled the person injured to maintain an action and recover damages if death had not ensued.

Common examples of a “wrongful act” include negligence, careless driving, assault and battery, manslaughter, and murder. These last two are where many people lose the thread because they unknowingly confuse civil torts and criminal cases.

Civil v. Criminal Court

A wrongful death claim is a tort and the ensuing lawsuit is handled in civil court. This suit is separate from any criminal charges which might be brought against the negligent party in a criminal court.

You want a famous example, you say? OK!

O. J. Simpson was (in)famously acquitted of criminal murder charges after a lengthy televised trial. Despite this acquittal in criminal court, a few years later the families of the victims brought a successful wrongful death lawsuit against him in civil court.

The primary purpose of a wrongful death tort is to compensate the surviving family for the financial losses they suffered because of the responsible party’s negligence. It will not punish the negligent party, but it can help lighten the short-term and long-term financial burden that a family must bear after the death of a loved one.

We believe that this is a key point and that you should always fully understand the purpose and implications of a lawsuit before you initiate the lawsuit. If you can’t define what you intend to achieve with a lawsuit, it’s more likely that you will not be satisfied by the outcome.

Who Can Initiate a Wrongful Death Lawsuit?

Remember that, according to the statutory definition in the Wrongful Death Act, a death is only wrongful if “the event would have entitled the person injured to maintain an action and recover damages if death had not ensued.”

To simplify things, it can be helpful to think of a wrongful death lawsuit as a personal injury lawsuit where, because the injured party died, someone else brings the personal injury lawsuit on behalf of the deceased. And yet, the courts would quickly get inundated if anyone could bring a wrongful death suit on behalf of anyone else regardless of connection or relationship.

Therefore, in Florida, only the decedent’s personal representative (sometimes referred to as an “executor of the estate”) is allowed to initiate a wrongful death lawsuit.

This term is more common in estate planning and elder law. As such, if the person who died had a will, they likely designated a personal representative. However, if there is no will, a probate court will need to appoint a personal representative. Any issues or disagreements over designation of the personal representative should be handled prior to initiating a wrongful death action.

How are “Bringing a Lawsuit” and Being “A Party to a Lawsuit” Different?

The final piece to disentangle follows on the second.

Occasionally, family members bristle when they learn that only the personal representative can be the plaintiff in the wrongful death lawsuit (i.e. bring the lawsuit). Their unease is generally unwarranted, though, since it stems from a misconception that only someone who brings a lawsuit can benefit from the lawsuit.

In fact, Florida’s Wrongful Death Act specifically states that the personal representative is acting on behalf of not only the decedent and the decedent’s estate, but also the “survivors,” meaning other potential beneficiaries of a recovery for wrongful death. All such beneficiaries are identified in the lawsuit and will be awarded damages as the statute allows.

Who Is a “Survivor”?

As with other critical terms, the statute includes a definition of “Survivors.” Per section 768.18, F.S., this class includes:

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.

These various definitions of “survivor,” “minor child,” and “net accumulations” are key to the overall amount of damages recoverable in the lawsuit and by individual beneficiaries.

For example, you can see that children of an unwed mother are included in the definition above, but that the same does not apply to children of an unwed father unless the father has recognized a responsibility for the child’s support.

The statute also sets out the types and amounts of damages that each beneficiary or survivor can recover in the wrongful death lawsuit. These statutory divisions are complicated, so it is best to discuss the rules and regulations with a wrongful death lawyer.

So, Can I Sue for Wrongful Death?

We can now come full circle to our original question, and, with the intervening answers in mind, provide a more fulsome and nuanced answer.

So, if you are the court-appointed personal representative of someone who has been killed due to someone else’s negligence, then yes, you can sue the negligent party for wrongful death.

On the other hand, if you are not the personal representative and by “sue” you mean strictly “bring a lawsuit in a civil court,” then the answer is no, you cannot sue for wrongful death.

But as we just learned, even if you aren’t the personal representative, if by “sue” you actually mean “receive compensation for financial losses,” then the answer is still yes! Beneficiaries, children, spouses, blood relatives, and others can recover damages in a wrongful death lawsuit, even though the personal representative is the only individual legally designated to initiate the lawsuit.

Get Us on Your Side

As you can see, the statutes and laws surrounding wrongful death lawsuits can be complex. If you believe someone else’s negligence or wrongful act caused the death of your loved one, you definitely need to seek out the advice and counsel of a qualified Florida wrongful death attorney.

While a wrongful death lawsuit can never replace what you’ve lost, it can ease the financial burden that has been imposed on your family by the sudden loss of your loved one—a necessary step to healing emotionally.

The personal injury lawyers here at Personal Injury & Accident Law Center would love to speak to you about your case and explain your legal options so you can make the decision that’s best for you and your family. Call us today at (561)372-3800 to schedule a free case evaluation or fill out the form below.