FLORIDA WRONGFUL DEATH ACTIONS IN A NUTSHELL
Andrew D. Stone , Esq. • Volume 3, Issue 9 September 2009
WHO IS ENTITLED TO TO FILE AN ACTION FOR WRONGFUL DEATH?
Pursuant to Fla.Stat.§768.20, an action for wrongful death must be brought by the decedent’s personal representative. It should be noted that Florida’s Probate Code sets forth a statutory priority which the personal representative of the decedent’s estate must follow when paying the expenses of the administration and obligations of the decedent’s estate. See Fla.Stat. §733.707.
WHAT HAPPENS IF THE INJURY RESULTS IN DEATH?
Fla.Stat.§768.20 provides that, “when a personal injury to the decedent results in death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate.”
WHO ARE “SURVIVORS”?
Survivors include the decedent’s spouse, children, parents, and, blood relatives and adoptive brothers and sisters if they are partly or wholly dependent on the decedent for support or services. See Fla.Stat.§768.18(1).
WHAT ARE “SUPPORT AND SERVICES”?
Fla.Stat.§768.21(1) provides that each survivor may recover the value of lost support and services from the date of the decedent’s injury to her or his death as well as future support and services from the date of death reduced to present money. Fla.Stat.§768.18(3) states that “support” includes contributions in kind as well as money.
Pursuant to Fla.Stat.§768.18(4), “services” are defined as tasks, usually of a household nature, that were regularly performed by the decedent and that will be a necessary expense to the decedent’s survivors.
ARE MEDICAL AND FUNERAL EXPENSES RECOVERABLE?
Under Fla.Stat.§768.21(5), medical and / or funeral expenses due to the decedent’s injury and death may be recovered by a survivor who has paid for such expenses.
WHAT IS INCLUDED IN “NET ACCUMULATIONS”?
Pursuant to Fla.Stat.§768.18(5), net accumulations relates to 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.
WHO IS ENTITLED TO MENTAL PAIN & SUFFERING AND LOSS OF COMPANIONSHIP?
Under Florida Law, both the surviving spouse and minor children are entitled to pain and suffering. See Fla.Stat. §§768.21(2) and (3). For the purposes of recovering damages under Florida’s Wrongful Death Act, minor children are considered to be children under the age of 25. Fla.Stat. §768.21(3) also provides that if there is no surviving spouse, all of the decedent’s children, regardless of their age, are entitled to pain and suffering.
It should be noted that along with mental pain and suffering, the surviving spouse is also entitled to damages for loss of the companionship and protection from the time of injury, and the decedent’s children are entitled to recover lost parental companionship, instruction, and guidance.
WHEN MUST WRONFUL DEATH ACTIONS BE FILED?
Under Fla.Stat.§95.11 (4)(d), an action for wrongful death must be filed within two years.
CAN THE ESTATE’S MEDICAL BILLS BE SETTLED BETWEEN THE LIEN HOLDERS AND THE DEFENDANT?
In July 2009, the 2nd DCA rendered their decision in Copeland v. Buswell, 34 Fla.L.Weekly D1510. In Copeland, the decedent was involved in an auto accident and sustained severe injuries. He was hospitalized for three months and subsequently died.
The attorney for the hospital where the treatment was rendered filed a motion to intervene and a lien in the probate case, pursuant to Fla.Stat.§733.202, in which he sought reimbursement for the $492,224.00 hospital bill. Subsequently, without advising the decedent’s estate or the probate judge, the defendants and the hospital settled the lien for $300,000.00.
Thereafter, the case proceeded to a non-jury trial and the estate was awarded the full amount of the hospital lien. However, since the lien had been settled, the court entered a judgment which awarded only funeral expenses.
On appeal, the 2nd DCA reversed the trial court’s judgment. The 2nd DCA held that the defendant and hospital’s settlement of the lien circumvented the statutory priorities set forth under Florida’s probate code and also violated Fla.Stat.§768.20 which give the personal representative exclusive authority to resolve claims on behalf of the estate.
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