Florida’s Wrongful Death Statute
By: Thomas E. Parnell, Esquire
In the crowded society we live in, accidents and misfortune are unfortunately, almost commonplace. We live shoulder to shoulder with our neighbors; drive side by side on crowded roadways as we drive to and from work and our daily errands and chores. We use tools, machines and dangerous equipment, we work in risky and dangerous occupations and we routinely receive medical care and treatment for serious and sometimes fatal medical conditions. We travel by boat, motorcycle and airplane in incredible numbers. It is inevitable that accidents happen and people are injured and sometimes death occurs. These accidents can range from deaths on the job, medical malpractice, airplane crashes, boating accidents, automobile accidents and tainted or contaminated food. The list is almost endless and continues to grow with changes in our society and technology.
In Florida, when a death occurs as the result of a defective product, tainted food, an automobile or motorcycle accident, industrial accidents, medical malpractice or any other means, we grieve and bury our friends and loved ones and mourn their passing. Once the mourning process reaches a certain point, most consult with legal counsel to seek advice and guidance as we pursue rightful and just compensation for a wide variety of damages associated with the loss of the loved one. All of those damages and the statutory mechanism for seeking such compensation is the Florida Wrongful Death Statute. There are other Statutes which govern the procedures when the death occurs on the job (Worker’s Compensation) or through medical negligence (Medical Malpractice).
Florida Statutes, Chapter 768.16 to 768.26 create the statutory framework which controls the process of seeking compensation. The Statute sets up all the parameters and legal requirements of who may file a claim, the time frame in which it can be done and the proper Plaintiff or Plaintiffs who have legal standing to pursue a claim. There are a litany of damages which may be sought for both adults and minor children and numerous complex procedures and technicalities which must be followed.
Of course, whether it is a serious or catastrophic injury or death, competent legal counsel is a must. One would be foolish to seek to seek damages in a matter so important without proper representation. The information here is provided so that a Plaintiff will better understand some of the components of the Statute and not as a platform or a guide for self representation.
Like most Statutes, there is a provision with definitions for the Courts to follow. §768.18 is the definition section of the Wrongful Death Statute. This outlines how the claim is properly handled and how the Plaintiff and the survivors qualify for relief within the Statute. §768.20 mandates that the Personal representative of the decedent shall be the proper Plaintiff and shall represent all potential heirs that may be entitled to damages.
While the entire Statute is to be read as a cohesive statutory scheme, one of the most important sections is §768.21. This Section specifies what elements of damages are recoverable. They include, lost support, loss of services, loss of companionship, loss of consortium, lost income, loss of net accumulations (savings), replacement of services, medical and funeral expenses. The Section also provides for mental anguish, pain and suffering and others.
It is often the case that the death of a loved one leaves behind children of varying ages. §768.21(3) – (8) and §768.23 address some of the damages and rules which our legislature has put in place to clarify various issues related to recoverable damages and to protect Minor children from abuses associated with their portion of the economic recovery that a Jury or a settlement agreement would provide. Among those protections are the requirement that the Court specifically approve settlements (§768.25), in most situations where the recovery is made on behalf of eligible Minor children of the Decedent.
Again, this information is only important in the context of understanding the process of collecting damages arising from the death of a loved one and not to assist you in pursuing a claim on your own without legal counsel. Over the years, the Legislature has responded to changes in the Family dynamic and in society and as with all Statutes, we are a society in a constant state of change. As we continue to change and evolve, our Legislature will continue to fine tune this Statute and make sure the rights of Plaintiffs and Defendants are properly balanced and that the 'playing field' remains level so that truth will come out and Justice will ultimately prevail.
According to the National Highway Traffic Safety Administration (NHTSA), 3,092 people were killed in crashes involving a distracted driver in the U.S. in 2010, the last year for which statistics are available. An additional 416,000 were estimated injured in distracted driving accidents. Overall, approximately 18 percent of all car accidents involving injuries in 2010 involved a distracted driver.