What is a wrongful death claim?
Wrongful death is a claim brought against a party whose negligence caused the death of another. The actions of the accused would be deemed outside of the scope of what a reasonable, careful person would do in the same situation.
These types of incidents can include, but are not limited to: airline, bus, or boating accidents, workplace accidents, medical malpractice or negligence, or exposure to hazardous substances. Because of the serious nature of wrongful death cases, they can be difficult to prove and can take quite a while to resolve.
The State of Florida requires such a suit to be filed within four years of the incident. Under a few specific circumstances, that timeframe can be extended. However, extremely narrow criteria must be met for this to apply to your case. In addition, there are two different forms of damages that can be awarded: compensatory and punitive. You can find out more about these damages on this page of our FAQ guide.
Wrongful death cases should never be faced alone. If your loved one passed away due to someone else’s negligence, your best option is to contact an experienced attorney who can fight your case for you.
What can I sue for in a wrongful death case?
There are two categories of damages in a wrongful death suit:
Are wrongful death settlements taxable?
To answer that question, we have to look at the two factors that determine the settlement amount in these cases: compensatory damages and punitive damages.
The Internal Revenue Service (IRS) has ruled that, in general, compensatory damages are not generally taxable. The code does point out that in some cases, if monies for medical expenses were itemized and claimed on prior years taxes, those amounts would become taxable upon receipt of the settlement. Punitive damages may be taxable to some extent as well. It is important to discuss this with your attorney to determine exactly how the law applies to your specific situation due to the intricacies associated with wrongful death settlements and tax liability.
The settlement may also affect estate taxes, so again, it is imperative to speak with an attorney and a tax professional to insure you are insulated against undue liability.
Who can sue for wrongful death?
The state of Florida determines that wrongful death claims can be brought only by the personal representative of the deceased person’s estate.
The deceased’s will or estate plan may pre-name a personal representative. If no will or estate plan exists, the personal representative will be appointed by the court. The personal representative may have no actual claim to the proceeds of settlement. For instance, if an attorney is named the personal representative, he/she is in place to oversee the affairs. Only specific surviving family members may recover damages in a Florida wrongful death case:
In the case of a child born to unmarried parents, the child can recover damages in the wrongful death case of his mother. If the child’s father dies, however, damages can only be sought if the father had formally recognized the child as his own and was obligated to contribute to the support of the child.
How do I file a wrongful death suit?
These cases are extremely complex and begin with the designation of a personal representative for the estate. This person must identify all surviving heirs as well as all costs associated with the decedent’s care leading up to his/her demise.
Only certain parties are eligible to bring the claim:
In the case of children born out of wedlock, children of the deceased mother are automatically considered survivors. If the father is the decedent, the children are considered survivors only if the father acknowledged them as his children and was responsible for their support.
Wrongful death suits must be filed within the statute of limitations. In Florida, that time frame is four years from the death of the victim. Filing outside of the statute could mean loss of the ability to file at all as the court can refuse to accept the suit.
To qualify to file, a burden of proof must be met in that the claimant must prove that the defendant did not use due care to protect the victim from harm and eventual death, and that lack of care directly resulted in the death of the victim. Additionally, it must be proven that the death caused the damages the claimant is seeking to recover.
To file the case, the claimant must seek legal representation.
According to Florida Statute 766, the decedent’s personal representative may recover for the decedent’s estate the following:
In short, each survivor, as identified by the personal representative, may recover the value of lost support and services from the date of the decedent’s injury to the date of death, with interest, including any future loss of service and support.
During the valuation for loss of services and support, the following factors are considered:
In computing the duration of future losses, the joint life expectancies of the survivor and the decedent may be considered.
What factors must be present to prove wrongful death?
In order to present a successful wrongful death case to an insurance company or court of law, the claim can only be supported if specific elements are present:
Once those parameters are identified, the next step is to determine who has legal standing to bring the action. This would include family members who suffered damages because they received all or some of their support from the victim.
A personal representative must then be appointed to:
Only upon establishing these elements can an action (suit) be initiated. Of utmost importance is to establish that the act resulted in the death.
What circumstances can substantiate a wrongful death claim?
There are three major categories in which wrongful death claims are typically grouped: medical malpractice, work-related death and criminal acts.
It is important to speak with an attorney early in the case to determine how to proceed.
How much is my wrongful death case worth?
This is a tricky question.
First, we must establish that there is a valid wrongful death claim, meaning the following burdens have been met:
Next, we must determine that there are survivors who are eligible to file the claim:
Finally, and probably most crucially, is determining whether or not the defendant has the means to pay a settlement or judgement. Let’s say the defendant is a business or large corporation with insurance and assets. It is likely that a settlement can be reached or a judgement awarded and paid to survivors on the decedent’s behalf. If, however, the defendant is a lone individual with no insurance or assets, the pursuit of a claim may not be advisable as the chances for obtaining compensation are nearly impossible based upon the defendant’s resources. Even when the individual has insurance, there are limits to the policy.
The intricacies of these cases require legal counsel adept and experienced at navigating the laws surrounding wrongful death and the avenues available for recovery with the parameters of the law.
How long can a wrongful death lawsuit take?
These cases can take years from inception to completion. Furthermore, it will be extremely emotional. The following is a summary of the steps involved in a wrongful death case:
The process is long and takes resolve and the expertise of legal counsel to ensure the case moves forward and all information is presented.
Can I sue a hospital for wrongful death?
Suits can be filed against health care providers of all types for medical negligence leading to wrongful death. Included are:
Some examples of what may constitute medical malpractice include:
In Florida, a medical malpractice action must be brought within two years from the date of the incident or from the date when the incident was or should have been discovered. An exception applies in cases where the facility knowingly withheld bad or inappropriate action from the claimant.
There is a requirement to serve a notice of intent to sue prior to pursuing the case in court. This starts with a medical affidavit called a Certificate of Merit. This is an opinion from another physician who has reviewed the case and makes a statement that the defendant’s negligent actions lead to the demise of the decedent. The statement should include:
This notice sets in motion a 90-day settlement process. During that period, verification of adherence to the statute of limitations is reviewed. Within this time frame, the hospital must make a decision as to whether or not they would like to settle the case. If they choose not to settle, you, the claimant, have 60 days or the remainder of the statute of limitations to file the lawsuit. In some cases, an extension is available to pursue additional investigation. Due to the complexities of these laws, experienced legal representation is required to ensure all burdens are met.