Understanding the Basics of Wrongful Death and Survival Action Claims
Regardless of how a death occurs, losing a loved one or a family member is a tragic time in anyone’s life. The death of a loved one or family member, however, can be all the more painful when someone dies unexpectedly, especially if the death occurs as a result of someone else’s negligence.
Tragically, people die far too often as a result of someone else’s negligent conduct, whether the death is from a car accident, medical malpractice, or other type of event. Under Florida law, certain individuals are able to recover compensation in connection with the death of a loved one. There are two types of distinct claims: a wrongful death claim and a survival claim. It is important to understand the differences between these claims because they are premised on different causes of actions and allow for different damages.
Wrongful Death Claim
Under Florida’s Wrongful Death Act, if the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, and if the person would have survived, then certain individuals are entitled to maintain a civil action and to recover damages. A wrongful death claim is premised on the injury that caused one’s death. An example is a car accident caused by another person speeding.
A wrongful death claim may only be brought by the decedent’s personal representative. The decedent’s personal representative is responsible for recovering damages for the benefit of the decedent’s survivors and estate. A decedent’s survivors mean the decedent’s spouse, children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It includes a child born out of wedlock of a mother and out of wedlock of a father, but only if the father has recognized responsibility for the child.
The Wrongful Death Act permits the decedent’s survivors to recover various types of damages on behalf of the decedent. These include:
- Value of lost support and services from the date of the decedent’s injury to her or his death;
- Loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury;
- Loss of earnings of the deceased from the date of injury to the date of death; and
- Medical or funeral expenses.
Furthermore, minor children of the decedent may also recover for lost parental companionship.
In awarding damages for loss of support services, the court will consider several factors, including:
- Relationship to the decedent;
- The amount of the decedent’s probable net income available for distribution to the particular survivor;
- The replacement value of the decedent’s services to the survivor; and
- The joint life expectancies of the survivor and the decedent and the period of minority for a child.
Florida law also permits a second type of claim to be filed on behalf of a deceased. This is known as survival claim. A survival claim, however, differs from a wrongful death claim in that the latter is premised on the injury that caused the death. In contrast, a survival claim is one in which the decedent may have brought or was bringing prior to his death.
This means a personal injury action unrelated to the injury that resulted in decedent’s death may still be brought on behalf of the decedent. An example would a trip and fall injury that occurred months before the decedent died in a car accident.
Contact a Brandon Florida Personal Injury Attorney
If you have lost a loved one, an experienced Brandon wrongful death attorney can help you recover compensation. Reed & Reed’s experienced Florida wrongful death attorneys can help protect your rights. From our office in Brandon, we help clients in Tampa, New Tampa, Plant City, East Hillsborough County and throughout the state of Florida. Contact Reed & Reed for a free consultation.