What is the importance of an attorney who handles the case of wrongful death?
So, this depends on the individual circumstances of the case, but on the most basic level when it comes to wrongful death attorneys their goal is to investigate and then recover money from individuals or entities that caused the death of an individual who would still be alive today if not for the tortfeasor’s actions or inactions – using Florida statutes and interpreting case law.
How is a death considered a wrongful death?
That will depend on a multitude of things and circumstances, as every potential case is different. But for some generic examples things like car accidents, truck accidents, home accidents, workplace injuries, and other tort-like actions that result in the eventual death of the originally injured individual have the potential to become a potential wrongful death matter. Technically, it would only be considered a wrongful death cause of action if presuit negotiations failed and one would then be forced to file a wrongful death lawsuit in a circuit court somewhere in the State of Florida.
How do you determine that a death was the cause of misconduct or negligence of another party to make a potential wrongful death action ripe?
Well, that’s kind of a two-pronged question right! The first thing you have to do is you have to piece together what act, action, or inaction caused an individual to, unfortunately, pass away. In other words, you need to know the “what” or what happened. Naturally, you have to do this at the presuit level first. You have to figure out what the factual scenario is, a kind of the lay of the land if you will. In addition to the factual circumstances, you will also need to know the players involved. This is the “who” of the potential matter. Then as you continue to investigate you need to determine who was present, what people say, what people didn’t, who the tortfeasor or bad actor would be, and then with that complete picture you can begin to build a theory of liability.
Once you have determined a workable theory of liability at the pre-suit investigation level, next you need to assess and make sure that the tortfeasor or bad actor is a person or entity that is collectible, because at the end of the day a wrongful death action is about holding bad actors economically accountable for the death they have caused. Once you have this picture in place with a theory of liability, and a collectible tortfeasor it’s time to get aggressive and try to resolve the matter through an informal demand, formal demand, presuit negotiation, presuit mediation, or some other mechanism to bring about the resolution of the matter. If this is successful then the matter ends with a presuit settlement and the signing of a mutual release or settlement agreement.
If you’re unsuccessful at the presuit stage, then you kind of have to take the second step, which is to determine how best to tweak everything you did at the presuit level to craft a wrongful death lawsuit for filing in circuit court. At this point, “what you say” is just as important as “how you say it” because now you have to make sure that you draft a complaint that complies with the Florida Wrongful Death Statute.
The Florida Wrongful Death Act is located at section 768.16 through section 768.26 of the Florida Statutes. Those are the Florida Statutes that comprise the Florida Wrongful Death Act and provides for a private right of action under Florida law for qualifying events. The Act itself is the statutory authority that you use to bring your wrongful death action if you have to file a lawsuit.
When you begin crafting the lawsuit you have to make sure that you comply with the requirements of the Florida Wrongful Death Act, and you need to make sure that you have a statutorily designated “beneficiary” or “survivor”. In other words, if you don’t have someone who qualifies as a survivor under the applicable statutes then you don’t have the standing to bring a wrongful death case to court. That becomes the end of the line in some instances. If you can comply with the requirements of the Florida Wrongful Death Act then you need to make sure you tweak your theory of liability accordingly and plead the factual allegations well enough to survive a motion to dismiss.
It sounds like a long process that depends on many factors
Yes, it can be a long process, but it can be streamlined too – each case is different, so it just depends. For example, when everything is captured on video, you have a bunch of eyewitnesses, who are all saying the same thing, and you have a statutory survivor, then it might not take very much time to figure out a theory of liability and get the ball rolling quickly. However, in other situations, it might take a long time to do a complete and thorough investigation to figure out the facts, players, and theory of liability. This can be compounded when it becomes difficult to get in contact with potential witnesses in order to piece together what happened in order to determine whether or not you have a viable case.
What is the compensation process in a wrongful death case?
You find your statutory survivor or beneficiary under the Florida Wrongful Death Act. That person is the individual who has lost the benefits and services of the person who died and becomes the tether to which you tie some of your damages, aside from the deceased’s medical bills, pain and suffering, and things like that. I’ve worked on a wrongful death case where a father was killed in a horrific car crash combined with a freak accident involving power lines and power poles on the side of the road, and the deceased’s son was the statutory Survivor who lost the benefits and services of having his father around. You would need to either work out a settlement presuit, file a lawsuit as described and settle before trial, or take the case to trial and get a jury verdict.
How do you calculate damages in a wrongful death claim?
There are different types of Damages. There is economic damage. So, things like the deceased’s medical bills, from the date of the incident up until the time they passed away from the injuries sustained in the incident. Then there’s, past pain and suffering, loss of services to the survivor, and the like which are forms of non-economic damages. Oftentimes when it comes to settling a case, they lump all the damages together into one number. But if you have to take your case to trial and present it to a jury the jury form would parse out the different types of damages which would then be added up to one large number which would be the verdict. This assumes of course that if you went to trial you won.
Do all beneficiaries in a wrongful death claim, have to agree to bring a lawsuit?
So that kind of depends. Under certain circumstances yes, under others no. For example, if there are three survivors and all three are named beneficiaries of the lawsuit, then the money that would be derived from that lawsuit through a settlement or through trial verdict would be evenly split among them. In instances where the tortfeasor or bad actor is not collectible then you get the Final Judgment entered after a successful trial verdict, but the survivors might never see a dime. This is why it is important to take the time to assess the collectability and solvency of the tortfeasor or bad actor in order to make sure if you get a successful verdict and Final Judgement entering it that the survivors get the money they deserve as a result of losing a loved one due to someone else’s carelessness or negligence.
Any professional suggestions for those who are visiting our website on this topic?
The most important thing is to understand that there is a strict statute of limitations for these sorts of cases. I know it’s like the last thing that’s on someone’s mind when they lose someone close to them, but it is very important to know that the clock is ticking. There’s only a certain time period that you are allowed to bring a wrongful death lawsuit in the State of Florida, and if you don’t bring the lawsuit within that time frame, you’ll never be able to.
So, I suggest that you speak to a lawyer right away, if nothing else for peace of mind. Knowing whether you have an avenue to hold someone accountable early on is better than finding out too late that you could have but the statute of limitations expired so you are stuck. If nothing else, speaking to an attorney early on will allow them to coach you and show you whether they think you have a viable case. When these terrible things happen people don’t know what they’re going to do at that time, they have so much on their plate, so much grief, anger, sadness – let an attorney at least take on the burden of evaluating the incident for them.