Damages I Can Recover in a Wrongful Death Claim

Wrongful death refers to the premature death of an individual due to the negligence or intentional acts of another party. Wrongful death claims are based on the presumption that the death could not have occurred if the party at fault had acted within their duty of care to the deceased.

Wrongful death claim feature four significant elements that have to be present:

• Negligence: This refers to the careless, reckless, or intentional acts by the respondent, which were partly or wholly responsible for the death of your loved one.
• Breach of duty: This is where the respondent’s actions are against the basic duty of care to the deceased. For instance, a doctor is supposed to maintain the health of a patient. If the doctor engages in acts of negligence that result in their patient's death, then the doctor has breached their duty of care.
• Causation: Causation is the evidence that the acts of negligence by the respondent resulted in the injury and death of your loved one.
• Damages: These are the costs and losses incurred because of the injury and death of your loved one.

The Florida Wrongful Death Act has provisions for persons allowed to file wrongful death claims. You can file the claim if you are the spouse, child, parent, sibling, or dependent of the deceased. The personal representative of the estate of the deceased can also file for the claim on behalf of the survivors and the estate, for their benefit. You could file a wrongful death claim if your loved one died due to:

• The use of defective or mislabeled products
• Automobile accidents
• Medical malpractice
• Workplace hazards and injuries
• Intentional criminal acts

After filing your claim, you can receive a settlement for benefits such as funeral and burial expenses, medical expenses, loss of wages, loss of consortium, guidance and protection, pain and suffering, and punitive damages.

The damages you can recover are grouped broadly as either economic, non-economic or punitive damages.

1. Economic Damages

Economic damages are those financial contributions or costs associated with the death of the deceased or the amount the deceased would have earned if they were to live longer. Economic damages are usually easy to calculate since their value is already in financial terms. Some of the damages calculated as economic damages include medical bills, lost earnings, and funeral, and burial expenses.

Medical Bills

In wrongful death claims, the medical expenses compensated account for all the expenses incurred since the injuries that led to the death of your loved one. Some of the medical expenses accounted for when calculating the number of damages include hospitalization, surgeries, medications, doctor’s visits, and rehabilitation costs.

You can incur medical bills even when the deceased only received emergency medical care shortly after the injury and death. Medical bills start accumulating as soon as the ambulance picks up your loved one.

Depending on the extent of the injuries, the medication requirements and expenses can strain your finances.

To recover these damages, you need to present all the medical bills that show the expenses covered by the deceased since the time of the injury.

Before the settlement is made, you can pay the medical costs using out-of-pocket cash or through your loved one’s health insurance, or request the doctor to wait until the verdict on the settlement is made.

Funeral, Burial and other Out-of-Pocket Costs

Out-of-pocket costs are costs incurred as the direct result of your loved one’s death. These costs include funeral costs, household help, and property damage.

Funerals and burials are often costly and can set you and your family a few hundred or thousand dollars back. You can recover these costs as you move towards healing from the loss of a loved one. Funeral costs are related to the preparation for burial services including:

• Securing permits and a death certificate
• Planning the funeral
• Transferring the deceased to a funeral home
• Embalming and preparation of the body
• Viewing the body
• Payment for the hearse and its services
• Purchasing a cemetery plot
• Headstones and vaults

You need to provide evidence of these costs to determine their value and reimburse you for your damages.

Loss of Income

Damages for lost income are usually awarded where the deceased was the primary provider or contributed significantly to his or her household. Lost income is calculated as the value of earnings the deceased would have earned if they were to live to their life expectancy level.

Calculating the lost income can be complicated due to the changing economics. Some of the factors taken into account when calculating the value of lost earnings include:

• The age of the deceased: the older the deceased, the more likely their income potential reduced. Therefore, the lost income is also lower.
• Preexisting health conditions: preexisting health conditions could help estimate the expected life expectancy and ability to earn income.
• Life expectancy.
• The salary and wages the deceased received before their death.
• The education, training, and career of the deceased.

Calculating the value of lost wages may require the help of economic experts who can estimate the expected earnings of the deceased and convert them into the current dollar value. These experts can be called upon as experts during the proceedings of the case.

Even when the deceased was not working, you can still recover damages for the financial strain the death brings. For example, stay at home parents who looked after children and household duties are still saving the family finances. Therefore, if they die wrongfully, the family will have to start paying for the services the person offered. Compensation for the loss of services will take the form of childcare and housekeeping costs.

Loss of Benefits

When your loved one dies, it is likely that you will lose benefits such as social security, healthcare, pension plans, and retirement benefits particularly if the deceased was a working adult.

2. Non-Economic Damages

These are damages paid to compensate you for the non-quantifiable effects of the death of your loved one. These include pain and suffering, loss of companionship, loss of parental care and guidance, mental pain and anguish, loss of support and loss of consortium.

These damages are calculated depending on the relationship between the deceased and the survivors. For example, minor or dependent children will be awarded non-economic damages for loss of parental guidance and care.

When awarding damages to minors in Florida wrongful death claims, minors are taken to be all the children of the deceased who are below 25 years. Where the deceased had children out of wedlock and provided support to these children, then they are also entitled to damages for the loss of support and parental care.

Parents who lose minor children through wrongful death can also recover damages for mental pain and suffering experienced from the date of injury. According to the Florida Wrongful Death Act, as the spouse of the deceased, you are entitled to compensation for the mental pain and suffering you have experienced since the deceased was injured.

The damages for pain and suffering can be increased depending on the circumstances leading to the pain. For example, a person who witnesses the death of their loved one is likely to carry that mental image for the rest of their lives. It will likely traumatize them and cause mental distress and anguish that can manifest itself in physical conditions such as nightmares, PTSD, and depression. Therefore, they deserve compensation for the trauma they suffer.

Calculating the amount of non-economic damages is a complicated process, which is mostly dependent on the impression the jury gets about the value of the support, companionship, care and guidance, protection and consortium provided by the deceased.

It is therefore advisable to keep a journal to document the feelings you have after the injury and death of your loved one.

3. Punitive Damages

Punitive damages may or may not be awarded in a wrongful death claim. These are damages paid to punish the offender and discourage criminal behavior. The amount of punitive damages awarded depends on the nature of the injury or accident that led to the wrongful death.

When punitive damages are awarded, your family will experience closure for the death since the party at fault has been punished.

Damages from the Wrongful Death of a Child

Damages involving the loss of a child can be limited and hard to calculate. When the parent loses a child, the damages recovered are usually the compensation for the financial losses incurred due to the death. These losses depend on factors such as:

• The age and gender of the child
• The life expectancy
• The state of health of the child
• The earning potential of the child
• The health, age, and circumstances of the claimants, and
• The relationship of the claimant to the deceased.

Calculating the earning potential of the child can vary depending on the age of a child. For example, if the child is a college student with a promising future (due to their educational pursuits), the court can speculate on what their earning potential could have been. For younger children, it is hard to speculate their earning potential; therefore, the damages are likely lower as well.

Calculating the Monetary Value of Damages

Damages have to be computed into a monetary figure before they are awarded. While life is invaluable and cannot be compensated, damages will help you recover from the unfairness of the wrongful death and attempt to bring closure to the family.

For this reason, courts have come up with various methods of converting the value of the deceased’s life into monetary value.

Calculating economic damages is a straightforward process, as you will only need to present evidence of payments such as receipts and pay slips. These costs are added up and may attract a certain interest. All lost wages and potential future earnings are calculated and converted into the current dollar value.

Non-economic damages are harder to compute. The jury may have a hard time determining how much to award your mental suffering and anguish. These damages are subjective, and their amounts vary greatly depending on how well you can convince the jury.

In most cases, personal injury attorneys will call upon the help of certified economists to help with calculating the value of damages from a wrongful death. They can use the various factors of the case, present and future economic changes, the background of the deceased and the life expectancy to determine what their life could have been worth to the family.

1. Valuation By Human Capital

Most damages for wrongful death are calculated based on the financial contribution the deceased would have made if they continued living. The value of the deceased is therefore measured in terms of the money they made, and that they would have made. Therefore, if the deceased was a low-income earner, the compensation is likely to be lower than that of a high-income earner.

Similarly, children and the elderly have low earning potential, meaning the damages awarded from their wrongful death will often be lower.

2. Non-economic Damages

When well represented by an experienced lawyer, the value of economic damages can often be higher and likely to give a boost to the economic damages.

3. Contributory Negligence

In determining the occurrence of wrongful death, the respondent must have acted with negligence resulting in the death of the victim. When you file a claim against the at-fault party, they may prove that your loved one was partly to blame for the accident. This can lower the value of the damages you receive. In most cases, where the deceased fault was less than 50%, the damages will be reduced by the percentage of their fault.

4. Punitive Damages

As stated earlier, punitive damages are awarded to discourage or punish the respondent for the intentional and grossly negligent act that led to the death of your loved one. In Florida, you have to prove that the respondent acted with gross negligence and that the act was intentional.

When these two conditions are met, the law places caps on the damages you can receive. In most cases, the cap is usually three times the compensatory damages or a reward of $500,000, whichever is higher.

Where the respondent caused wrongful death due to a negligent act, with the intention of financial gain, then the cap increases to $2,000,000 or four times the compensatory damages, whichever is higher.

This means that if you can prove that the respondent acted intentionally with negligence, the damages you receive will be higher.

5. The Character Of The Deceased

The character of the deceased plays a role in the damages awarded to the survivors. For example, where the deceased was a spendthrift or failed to support the family, the damages can be substantially lower. However, where the deceased was regarded as a nice and responsible person, the damages will likely be higher due to the value they had during their lives.

6. The Value of the Respondent’s Insurance or Assets

When filing a claim for wrongful death, the assets and insurance coverage of the respondent will come into play. When filing the claim against a company or a person with many assets, the settlement is likely to be higher, and payments will likely be made.

However, when the respondent has limited assets and insurance, the jury may award you a high settlement that can neither be recovered from the respondent's insurance nor assets. In this case, settling for a smaller settlement that the respondent can afford is the best option.

In most cases, your lawyer will advise you on the best route to take: whether to take the respondents offer or take the claim to court.

7. The Skill and Experience of your Lawyer

The lawyer or legal team you hire to represent you will have a great impact on the amount of settlement you receive. In addition, they will influence whether you win the case or not. Experienced lawyers will often have the ability to identify potential arguments that could increase the amount of settlement you receive for wrongful death.

When choosing a lawyer, there are several things you need to take into account:

• Their experience in handling wrongful death cases: the experience can be measured in the number of years they have practiced and the number of cases they have won, as well as the settlement, amounts for each case.
• The reputation of the lawyer amongst other legal professionals and customers: read reviews and testimonials of the customers and peers to determine whether they are the best fit for your case.
• Their ability to provide you with information related to the case: a good personal injury lawyer should demonstrate a clear understanding of the issues involved in a wrongful death lawsuit and can advise you accordingly.

After finding out the types of damages you can recover in a wrongful death claim, you may be wondering how the settlement is divided among the family members. Often, the court decides how the proceeds should be distributed. The factors considered when distributing the settlement include:

• Whether there are minor children or dependents of the deceased
• The relationship between the survivors and the deceased
• Whether the survivors are adults and whether they are capable of settling the matter amicably
• The willingness of the survivors to engage an attorney in diving the settlement

Where minor children are involved, the court usually assigns a court-approved guardian whose job is to ensure that the settlement is divided with the best interests of the child (ren) in mind. The court protects the rights of minor children as they are easy to be ignored or under-compensated, yet they are the most dependent upon the adults for financial, educational, and moral support as well as for guidance and protection.

If the survivors are all adults, it is always best that they agree upon how to divide the settlement amongst themselves. They can sign the relevant contract documents to keep their agreement official in the presence of a personal injury attorney. This is usually the best approach as it saves both the attorney’s and the plaintiff’s time.

However, if you cannot agree on how to divide the settlement, you can either pursue different claims against the respondents or hire different lawyers who will work together to fight for the claim.

In the first option, which is often not the best, you will be unaware of what the other parties receive or how their claims proceed.

With the second option, your lawyers work together for the same case with all your interests at heart. These attorneys present a united front in negotiating the overall claim. The lawyers will then negotiate with each other, each representing their client after the awarding of the settlement. The one whose lawyer has the best negotiation skills will often win the largest settlement.

Filing a wrongful death claim can be a complicated process that may last longer than you anticipated. To help you with the case, and provide you with the relevant guidance, you need the help of an experienced personal injury attorney. The team at Jacksonville Personal Injury Attorney is experienced in handling wrongful death claims and fighting for the most favorable compensation for our clients. Call our Jacksonville injury lawyer today at 904-800-7557 to book your free consultation.