Florida's Wrongful Death Act, which is governed by Section 768.14, Florida Statutes, provides that the action may be pursued when death is caused by any "wrongful act, negligence, default or breach of contract or warranty". The Act allows for the recovery for intentional and/or negligent acts. Our Tampa wrongful death attorneys have litigated numerous wrongful death cases and are well versed with the Wrongful Death Act.
Florida Wrongful Death Act designates the proper party to pursue a cause of action based upon wrongful death lawsuit shall be the decedent's personal representative, who shall recover for the benefit of the decedent's survivors and estate, all damages caused by the injury that resulted in the wrongful death. Section 768.20, Florida Statutes.
The decedent's spouse is a survivor under Florida's Wrongful Death Act and may be entitled to recover in the lawsuit. However, the decedent and spouse must have been married at the time of the alleged negligent act(s). In Florida, a common marriage entered into after January 1, 1968 shall not be valid as Florida does not recognize common law marriages. Should a surviving spouse remarry, Florida law allows testimony and/or evidence of the surviving spouse's remarriage during trial.
A decedent's "minor" children, defined under the Wrongful Death Act, as children under the age of 25, may be entitled to recover damages under Florida's Wrongful Death Act. It is generally accepted that legally adopted children of the decedent shall be determined to be a surviving child and, thus can pursue and potentially recover under the Wrongful Death Act as well.
There are two (2) categories of damages that can be recovered under Florida's Wrongful Death Act. Section 768.21, Florida Statutes. It is very important to know that the damages are vastly different and distinct from one another, which are listed below as follows:
- Damages recoverable by the survivors
-A surviving spouse may recover for the loss of the decedent's companionship and protection and for mental pain and suffering from the date of the injury;
-Minor children may recover for lost parental companionship, instruction and guidance and for mental pain and suffering from the date of the injury;
-Parents of a deceased child may recover for mental pain and suffering from the date of the injury; and
-Medical and funeral expenses due to the death may be recoverable to a survivor who has paid the expenses.
2. Damages recoverable by the estate
-Loss of earnings of the deceased from the date of the injury to the date of the death, less lost support of survivors excluding contributions in kind, with interest. Loss of the prospective net accumulations of an estate, which might reasonably been expected but for the wrongful death, reduced to present value;
-Medical and funeral expenses due to the decedent's death that have become a charge against the estate or that were paid by or on behalf of the decedent.
Florida courts use a three (3) part process to calculate the prospective accumulations: (1) probable gross income after taxes; (2) personal expenses and costs of support of survivors and (3) normal life expectancy. The projected earnings are then reduced to present value.
Navigating one's way through Florida's Wrongful Death Act can be quite a perplexing and challenging task. To fully evaluate whether you may have a wrongful death claim, please contact us, your Tampa Personal Injury Attorneys.