Did you lose a loved one from the negligence of another in Tampa and have questions about these 6 wrongful death tips for you? Call us today!
1) Wrongful Death Compensation
Generally in a personal injury wrongful death, where your loved one is struck and killed by a motor vehicle or driver, or something like a slip and fall where they hit their head unnecessarily and they pass away, the type of damages that can be recovered is, first, the claim for all damages brought by the personal representative. Then the immediate family members – the spouse, the children, and if no children, in some cases the parents – can bring claims for their loss of companionship, society, affections, and all of their non-economic pain and suffering. There’s also a claim for loss of what we call “net accumulations to the estate.” What that means is the amount that was being saved. As we live, we consume money because we have to eat, we have to be dressed, we have to have housing. You can’t just recover lost wages, but you can recover a loss of net accumulated money to the estate, so savings records and those kind of things become very important in making a claim for all of the damages for a wrongful death.
2) Wrongful Death Settlement Timeline
Working through a wrongful death case can take a variable amount of time. It depends on the analysis of liability, what happened that caused the death, what factors existed that the defense would call pre-morbidities. There are variable factors, and it can take anywhere from – we have had here at Morgenstern & Herd wrongful death cases resolve in less than six months, and we have had cases that have taken four or five years.
- Wrongful death cases can take anywhere from 6 months to 5 years to complete
3) Available Wrongful Death Benefits
Often when a death occurs due to the negligence of another party, a party who’s going to become a defendant, we’re asked the question what are the damages that the estate can recover. A personal representative is set up to represent the estate, and then the estate, that representative, recovers all of the damages for the estate, on behalf of the estate. People get confused and they think that they’re evaluating – that the damages in a wrongful death case are I’m going to evaluate the value of the loss of the decedent. For example, in a case where you have a father who is wrongfully injured and dies from those injuries due to the negligence of another, a child may think as a statutory survivor, they’re evaluating the value of my father’s death, but that’s not the case.
The damages, in that situation where you have a surviving spouse and a child and the father had died, the spouse has a claim, an individual claim, for loss of consortium, the loss of her society, affections, companionship, of her spouse who’s no longer here, and the children have a similar type of claim, the loss of the companionship, advice, nurturing, guidance of their father. The medical bills, if there are any, that were incurred as a result of the negligence before the death occurs, those are an element of damages, and any loss of what we call net accumulations to the estate. If the father in our example was working at the time of his passing due to the negligence of another and the family was saving money, and we can show evidence of that savings, that accumulation of wealth, that’s the element of damage. We don’t get every penny that the decedent would have earned over the course of his lifetime, normal life expectancy, because as we live, we consume, and some people consume everything they earn. It is only the savings that the estate would accumulate, so those are the elements of damages that can be recovered in a wrongful death action in the state of Florida.
4) Heirs Hiring Separate Attorneys
One of the complex questions we get asked about wrongful death cases is whether or not statutory survivors who have claims for the wrongful death of a loved one, can they hire separate attorneys? The short answer is they can, but just by hiring a separate attorney, a statutory survivor does not have the right to jump out and file the action to appointed PR and bring the claim. There is an order of preference for appointment of personal representative. First preference goes to the spouse, so it is the personal representative who has the right to bring the entire action. A statutory survivor other than the personal representative can hire a separate lawyer but they cannot bring a separate action. Those lawyers have to work together, the lawyer that represents the PR, the lawyer who represents the statutory survivor, and it can become very complex. It’s much more direct to allow the personal representative and the personal representative’s lawyer to bring all of the claims in consideration for all of the injured victims.
5) Wrongful Death Punitive Damages
One of the questions that we’re asked regularly in wrongful death actions if whether or not punitive damages can be recoverable in a wrongful death case. The short answer is yes but the threshold for recovery of those types of damages is very high. That threshold is the same for all cases, whether it’s wrongful death or you bringing your own injury claim. It’s a high threshold. It’s not just negligence that will allow you to recover punitive damages because if a third party or a defendant or an at fault party is negligent, in other words, they owed duty to the injured party, the breached that duty, and the breach of that duty causes damages. Those are the elements of negligence.
When you’re talking about punitive damages, those are punishment damages. In negligence actions, we don’t punish people. That’s the criminal system and it requires intent. In order to get punitive damages in a wrongful death case or any personal injury case in the state of Florida, you must prove willful behavior, almost purposeful, but something so egregious that it’s equivalent to second degree murder.
6) Timing of Death After Traumatic Injury
In the state of Florida, in order to bring a wrongful death claim, an estate must be established. If there is a surviving spouse, the spouse has the right to be appointed as a personal representative. In some cases, the spouse may give us that right. He may allow two children to be co-representatives. That allows the children to take part in the litigation in a different way than they would otherwise just as statutory survivors of the loss of their parent. If you have a personal representative appointed by a probate attorney, and that’s what we do. We are not probate attorneys so we work with a set of probate attorneys to make sure that all of the laws are satisfied. If the spouse is appointed as the personal representative because they have priority and that spouse dies before the wrongful death case is completed, then the children have the right to be put in place of the spouse who dies as the personal representatives. It doesn’t end the case but it affects the claim of the survivor who now is no longer survived the action but there is still a claim that can be compensated but it ends that claim.
Did you lose a loved one from the negligence of another in Florida and have questions about these 6 wrongful death tips for you? Contact experienced Tampa Bay Wrongful Death Attorneys at Morgenstern & Herd today for a free legal consultation and case evaluation.
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