Wrongful Death

A wrongful death claim is filed when a person dies as a result of negligence and intentional action by another person. This is a new concept; it is not a common law (laws adopted by the United States from Britain). Both federal and state laws make it possible to file a wrongful death case since the last century.

Wrongful death claims could include car accidents, fatal accidents, product liability cases, and medical malpractice. Individuals, companies, and government entities can be legally liable for failing to act reasonably, thereby causing wrongful death.

Although the damages in wrongful death claims vary, a plaintiff must present the same elements. These elements include: 

Proving the Duty of Due Care

For the accused to be held liable for negligence, he/she must have provided the victim a duty of due care. Even though the definition of due care varies depending on the circumstances of the case, it is refraining from doing something that may cause harm to another person. For instance, if the plaintiff is accusing the defendant of reckless driving, the plaintiff would argue that the accused owed the victim a duty of due care to drive the vehicle as a prudent driver would.

The judge then decides if the accused owed a duty of due care using factors like:

• Public policy consequence of determining a duty in similar cases
• How predictable the harm was
• How sure a potential injury was known before it took place
• The relationship between the defendant's act and the harm
• The moral blame of the accused

Proving the Breach of Duty

After the duty is determined, the plaintiff must show that the accused breached that duty. Referring back to the above example, the plaintiff must present evidence that the accused was not attentive while driving when they hit the deceased.

Proving Causation

The next thing the plaintiff should do is to show that the breach of duty led to the death of the person. Causation issues are very complicated as they depend on the facts of the case. Back to the same example above, you must prove that it was the accused’s vehicle that hit the dead person and not any other vehicle. If another car had hit and severely wounded the victim before the defendant's vehicle was involved in the road accident, chances are that the judge will not find the defendant's breach of duty causing the harm. On the other hand, if the victim was also wounded and the defendant's breach of duty caused an accident that led to death, then the court will conclude that the defendant caused the harm.

Proving Damages

The plaintiff must also present evidence that the deceased suffered damages. In any wrongful death case, damages are presumed for obvious reasons (which is the injured person died) provided that the breach of duty and causation exist. In many other negligence cases, it is possible for you to present all elements but lose the case. This could be because there is not enough evidence to prove the extent and nature of the harm.

Damages refer to a loss or injury that can be compensated. Generally, there are three types of damages available to survivors of wrongful death lawsuits.

Economic Damages

These are financial contributions that the deceased would have made to their loved ones if they did not die. They include:

• Medical as well as funeral expenses related to the death
• Loss of the deceased's expected earnings
• Loss of essential benefits like medical insurance and pension plans
• Loss of inheritance
• Goods and services provided by the victim

Non-economic Damages

Although not tangible, non-economic damages are more valuable than economic damages. Perfect examples include:

• Loss of consortium from a dead partner
• Pain, mental anguish, and suffering by the survivors
• Loss of companionship, love, and the sense of society from the victim
• Lose of care, support, guidance, protection, advice, guidance, and nurturing from the victim

Punitive damages

The aim of punitive damages is not to compensate you for your loss but to punish the accused for misconduct. They are only awarded if the defendant was malicious and did not show any regard for human life.

In some cases, you can get compensation for your attorney's charges and interest. This may include all reasonable expenses paid to lawyers during the case and interest from when the damages occurred.

It is challenging to place monetary values on people’s lives. However, to avoid unfair judgment, you are required to engage the services of financial professionals like economists who will determine the value using non-economic and economic factors.

Economic factors that are put into consideration include:

• The deceased future earning capacity and their income at the time of death
• The deceased health condition before the accident
• The level of education as well as any specialized training attained by the victim
• Loss of future benefits like insurance and pension
• Medical bills accrued due to the accident
• Funeral expenses
• The person’s age at the time of death

Non-economic factors can also be considered. They include:

• The defendant’s identity
• Loss of care, support, love, companionship, protection, or affection suffered by the deceased's loved ones
• The subjective value of life as deemed by the court

Compensation is never awarded by guesswork. It should be based on evidence. The above non-economic and economic factors are flexible. This means that they change depending on the unique character of the deceased and how they lived and died.

When the case goes to trial, the jury awards all damages to the family. Then the court divides the entire amount based on factors like the heir's financial dependence and the relationship between the deceased and the heir.

If the case settles, all the heirs decide among themselves on how to share the awarded proceeds. They can also seek assistance from a judge, mediator, or arbitrator. To avoid problems arising later, it is advisable for the beneficiaries to determine among themselves how they will share the proceeds right at the beginning of the case.

Wrongful Death As a Result of Mislabeling or Public Liability

A perfect example is when a machinery malfunctions and injures someone who later dies as a result of the malfunctioning. There are also many claims filed every day against companies due to improper product labeling and failure of giving warnings of known potential dangers and hazards.

Car Accident Fatality

The second type is an auto accident where the victim dies due to negligence by a driver. Wrongful death claim lawyers have handled lawsuits linked to speeding over the limit, reckless driving, driving while under the influence, fatality claims associated with poor road conditions and roadway construction, and distracted driving.

A law firm should hire an accident reconstructionist who determines the exact impact of the injury sustained. 

Wrongful Death through Medical Malpractice

Wrongful death can also be filed as medical malpractice claims like when a medical practitioner prescribes medication without taking the patient's pre-existing health condition into consideration, and later the patient dies. Claims can also be brought when a physician offers services that fall below the expected care standard.

Lawyers have also handled birth-related injuries leading to the death of the mother or the baby. Typically, the medical provider will fail to note issues that could complicate normal delivery. These disorders include gestational diabetes, hypertension, fetal distress, and maternal infections. Such negligence can lead to cerebral palsy, growth and developmental delays, and fatal injuries that may lead to death. 

According to the Florida Wrongful Death Act, the claim must be filed by the real parties in interest (a representative of the survivors who suffers loss from the deceased death). The personal representative is determined by the victim's will or similar estate plan. In cases where the deceased did not have a will or any similar estate plan, the real parties in interest are appointed by the court in the jurisdiction of where the victim lived.

In accordance of the Florida Wrongful Death Act, you can bring a wrongful death claim as a spouse, parent, child, dependent blood relative and any child born out of wedlock where the parent assumed the responsibility of supporting the child.

The steps you take after a loved one dies will determine the outcome of a wrongful death claim. It is essential to take the following steps before calling a lawyer.

• Unless you were there when the accident occurred, you would most likely find out from a friend or law enforcement
• Go to the scene (this step will be nullified if you witnessed the accident)
• Take as many photos as possible
• Look for any witnesses and ask them if they would be willing to testify in court
• Note down all the expenses incurred
• The next step is contacting an experienced lawyer

So What is the Right Time to File a Lawsuit?

This is known as the statute of limitations under the Florida Wrongful Death Act. Once the statute of limitations passes, a lawsuit cannot be filed as well as all legal rights related to the claim are nullified. That time is two years but can be postponed or tolled under certain circumstances.

In case the lawsuit settles before trial, the judge may choose to appoint a guardian ad litem that conducts a court hearing to approve any settlement on behalf of a minor. Individuals representing the defendants and plaintiffs as well as a guardian ad litem should attend the special court hearing.

Every wrongful death case is unique. While some can be resolved in months, others can take up to three years to close.

Arguably, most insurable companies are interested in quick settlements. This is because they know it is in their interest especially when the victim dies. The sad thing here is that you may end up with more medical or rehabilitation costs that are way above what was addressed by the settlement. Although working with qualified wrongful death attorney does not speed up the process, it is the recommended method to use an expert attorney since it will increase the chances of you getting the accurate compensation.

Instead of bringing wrongful death claims, survivors may choose to file a survival action claim. A survival action is an extension of a pre-existing legal claim that should have been pursued before the victim's demise. Damages collected include compensation entitled to the deceased should they have survived the injury.

In some cases, the injury may not be linked to the primary cause of death. For instance, if the deceased had been involved in a slip and fall case that led to back surgery but later died from a stroke, the dependents can file a survival action lawsuit to get compensated by the liable party for the surgery expenses.

In Florida, the law requires dependents to choose between filing a survival action claim or a wrongful death claim. It may seem complicated and confusing determining your case type, but remember you don’t have to make the decision alone. Consult a lawyer with many years of experience. The lawyer will have a better understanding of the case and will advise you accordingly.

Each heir can hire their own lawyer to represent their interest. It is common in cases where the heirs are hostile to one other and several lawsuits may be filed against the defendant. In such a situation, each survivor will not know the amount received by the others since settlement agreements and negotiations are kept private.

Still, each beneficiary may hire their lawyer but ask the lawyers to work out the details together. 

To answer this question, you should consider both federal and state taxes. Also, it is important to note that the state of Florida doesn't have a state income tax. When it comes to federal income tax, it depends on what is covered in the settlement.

Generally, compensation for physical injuries are not taxable, so are mental anguish and emotional distress resulting from bodily injury. That means that the compensation you receive for medical expenses is exempted from taxation.

However, if you took deductions on medical expenses related to the accident, you should include your settlement as income. Lost earnings and wages are subject to taxation. Also, you should report interest on your settlement as income. Punitive damages should not be reported as income.

For instance, Andrew and his wife Mary are driving down the road when a speeding driver slams into their vehicle, killing Mary. Andrew can file a wrongful death lawsuit to recover damages he lost as a result of Mary's death. Some damages will be taxable while others will not. If he gets compensated, the following are the damages that would be taxed and those that are exempted:

• Mary's medical expenses: Non-taxable
• Lost earning capacity and wages: Taxable
• Mary's suffering and pain between the accident and her death: Non-taxable
• Mary's mental anguish due to injury: Non-taxable
• Emotional distress: Taxable since it did not result from Andrew's physical injury
• Property damage: Can either be taxable or nontaxable depending on the asset's worth
• Punitive damages: Non-taxable

You are allowed to designate settlement amount for every type of damage, but reasonably. You can't claim $2,000,000 in medical expenses and $100 in emotional distress as a way to avoid being taxed.

Back to the previous example, if Andrew files a claim against the careless driver in the accident, he should file for Mary's medical expenses, Mary's pain and suffering, both his and his wife's emotional distress, and punitive damages. If the parties settle the claim for $1,500,000 in the settlement documents, the $1,500,000 should be allocated as follows:

• $200,000 for Mary's medical bills
• $100,000 for Mary's lost earning capacity and lost wages
• $300,000 for Andrew's mental anguish after losing his wife
• $300,000 for Mary's mental anguish between the accident and her demise
• $100,000 for Andrew's pain and suffering
• $500,000 for punitive damages

In this case, only his emotional distress ($300,000) and Mary's lost earning capacity, and wages are taxable ($100,000) while $1,100,000 is exempted from taxation.

Note: If Andrew also files a personal injury lawsuit, he could file for higher mental anguish damage since they are non-taxable provided it is as a result of the injury.

As per Florida Statutes section 768.28, the State of Florida waives its right to sovereign immunity and agrees to be sued for some torts. Sovereign immunity is a common rule that prevents citizens from suing the government's acts and decisions. It was adopted from Great Britain, but various states in the US have selectively waived this right and allowed citizens to sue the government.

In Florida, you can file a claim against the government if the accident was caused by omission or negligence and the circumstances where the negligent party would have been responsible as a private party rather than a government employee or agency

However, the Florida statute imposes the following limitations:

• Government employees can't be held liable for injury unless they caused it intentionally. Instead, all claims are filed against the government agency that employs them;
• Damages against the government are limited to $200,000 or a total of $300,000 if the claim is against several agencies; or
• The state can appeal any case resolution.

Is it possible to bring a wrongful death case if the deceased was unemployed

Yes, even if the dead were unemployed, they may have contributed in some significant way to their family. A perfect example is an action of the wrongful death of a stay-at-home parent who guided and nurtured their family. Such contributions are regarded as pecuniary losses.

What is the difference between criminal and civil cases that are filed regarding death?

A criminal case comes about when the government punishes someone for committing a crime. A civil case, on the other hand, involves a conflict over rights and responsibilities that individuals and companies owe to each other legally. Typically, a criminal case has a higher burden of proof and the penalty enacted is criminal sanctions like imprisonment. In a civil case, the accused pays penalties in monetary terms.

What happens if one survivor entitled to file a wrongful death case decide that they don't want to sue?

According to the law, all potential wrongful death claimants should be united in one case. Nevertheless, the law also provides mechanisms for dependents who don't want to pursue the claim to opt out provided they assure potential defendants that they are signing away their rights. 

Is it important to hire a wrongful death attorney?

The first reason to hire a lawyer is to answer all questions as to what occurred in the accident. The lawyer should understand Florida Wrongful Death Acts and various elements needed to build a strong case. Also, the legal process is very complicated, and there are different documents to be filled on strict deadlines. Figuring out these details on your own can be time-consuming while your lawyers know what to do and when. Let the experts handle all these complex issues and free up your time to spend with your family and friends as you heal from this emotional ordeal.

Was your loved one a victim of a wrongful death that fits into one of the types discussed above or through entirely different circumstances? Prompt investigation is imperative, and we encourage you to request a case evaluation so that our attorneys can review the unique aspects of the case. To set up an appointment, contact the Jacksonville Personal Injury Attorney at 904-800-7557 today.