1. What is a "Wrongful Death"?
When a death is caused by the misconduct of another person or company it is called a "wrongful death". The misconduct can range from an act of momentary negligence or carelessness to an intentional or reckless act. It can be the act of a single person or of a corporation, such as a drug company. A section 768.16-768.26 of the Florida Statutes governs the law. It provides for the compensation of the survivors when a wrongful death occurs, just as it provides for the compensation of a victim who has been injured by similar misconduct.
2. Who are the survivors that have a right to be compensated for a Wrongful Death?
The laws of each state identify the persons entitled to compensation for a wrongful death. It is common for the list of survivors (sometimes called "beneficiaries") to include the spouse and minor children of an adult deceased. Sometimes, as in Florida, the definition of minor children includes persons older than 18. It is also common for the survivors to include the parents of a minor child deceased. Again, Florida uses an expanded definition of "minor children". The estate of a deceased usually has rights to compensation as well.
Florida and some other states also recognize the rights of relatives other than those mentioned if they were dependent upon the deceased for support or services.
3. Who has the right and the responsibility to make the claims for a Wrongful Death?
In order to be certain that there is proper compensation for each survivor or beneficiary it is common for the governing statutes to provide that a particular category of person has this right and responsibility.
In Florida, the statutes require that the Personal Representative of the Estate of the deceased bring any claim and assure that the interests of each survivor are protected. The Personal Representative is frequently a spouse or parent of the deceased.
In situations where no Estate is needed for probate purposes it is necessary to open an Estate to accomplish the appointment of a Personal Representative.
4. What are the losses or damages that determine the compensation in a claim for Wrongful Death?
The losses or damages vary somewhat from state to state. They also are dependent upon the relationship of the survivor to the deceased. One example: a spouse is usually entitled to be compensated for the loss of the love, affection, companionship, support, and services of the deceased for the period of their joint life expectancy. Another example: a "minor" child (who might actually be in his or her twenties) is usually entitled to recover for the loss of the guidance, affection, support, and services of the deceased.
In each instance the law seeks to allow compensation for the actual losses that have been experienced by each individual survivor.
It is also common for the Estate to have the right to seek compensation for the loss of the prospective estate that would have accumulated had the wrongful death not intervened.
Lastly, medical and funeral expenses are normally recoverable by the Estate or the survivor who has paid or is obligated to pay them.
5. Who should start the investigation of a potential Wrongful Death claim?
Any person who believes he or she may be a survivor or beneficiary entitled to compensation because of a wrongful death would have the right to consider starting the investigation of a potential claim. Sometimes the most logical person to investigate or start a claim, such as a widow, is not willing or able to look into the matter. In such a situation, any survivor or beneficiary should contact an attorney experienced in handling serious injury or wrongful death claims. The attorney can ascertain whether the claim would have merit and what categories of compensation would be permitted under the law. He or she would also be able to determine who should be appointed as Personal Representative of the Estate of the deceased if the Estate has not been previously opened.
6. Are there any unusual issues that arise concerning a claim for Wrongful Death?
Yes, there are many unique issues to confront in a claim for a Wrongful Death.
1.It is obviously necessary to prove that the death was caused by the misconduct of another person or company. This can be complicated at times when other potential causes are present. An example would be the seriously ill person who is given improper medication in the hospital. In that circumstance, the defense would likely be that the death was really just the natural progression of the underlying disease or condition.
2. It is always necessary to prove the life expectancy of the deceased in order to determine what the future losses would be. This is not a major problem when the deceased was in perfect health at the time of the misconduct. But, it becomes complicated when the deceased had a life-threatening or life-shortening disease or condition.
3. It is likewise necessary to prove the life expectancy of each survivor or beneficiary. After all, the future relationship would only have existed during the period of the predicted joint life expectancy of the deceased and the survivor.
4.The nature of the relationship between the deceased and the survivor, in all of its relevant aspects, must be fully developed and presented. Sometimes the relationship is almost storybook perfect and sometimes it is quite different. In either event, it needs to be understood and documented in order to support the individual claim of the survivor.
5. Much of the true loss in a wrongful death claim is non-economic or emotional in nature. This requires special skills and care in the development of the proof and in its presentation. It is a matter quite different from just permitting an injured person to describe his or her back pain.
6. It is mandatory that each survivor's claims be developed and presented fairly without favoring or appearing to favor one survivor over another. This is especially true in those situations where, for example, the widow is the Personal Representative of the Estate of the deceased with the responsibility to present a claim on her own behalf and another claim on behalf of a stepchild. There are many other situations that require a special effort be made to assure a fair process at every step of the claim for each survivor.
Michael E. Seelie, PA has represented people in Jacksonville, Florida and the surrounding communities of Orange Park, St. Augustine, Green Cove Springs, Callahan, Palatka, Fernandina Beach, Gainesville, and Lake City in rollover accident cases since 1978.