Wrongful Death

Wrongful death refers to a civil action to recover damages against a person or entity who negligently or intentionally causes the death of another.  The types of damages available in a wrongful death case differ from a traditional personal injury cases because wrongful death focuses on compensating the survivors of the decedent who are left without the financial and emotional support of the decedent.

A wrongful death action is brought by the decedent’s personal representative, who can recover for the benefit of the decedent’s survivors and estate.  Fla. Stat. § 768.20.  In general, a decedent’s surviving spouse, minor children, adult children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adopted brothers and sisters may recover for damages for the wrongful death of the decedent.  Fla. Stat. §§ 768.21 and 768.18.  The decedent has no cause of action for his own personal injuries or pain and suffering prior to his death.  Fla. Stat. § 768.20.

A surviving spouse and minor child can recover non-economic and economic damages.  Fla. Stat. § 768.21.  Parents and siblings may recover economic damages if they relied on the decedent for support, but neither may recover non-economic damages if the decedent was over 25 years of age and left other survivors.  Fla. Stat. § 768.21(4).  In addition, the personal representative may recover net accumulations reduced to present value and medical and funeral expenses charged against the estate.  Fla. Stat. § 768.21(6).  Any family member who paid medical or funeral expenses due to the decedents injury or death, separate from those charged to the estate, may recover those as well.  Fla. Stat. § 768.21.     

The surviving spouse may recover the value of loss of support and services from the date of the decedent’s injury to his death, with interest, and future loss of support and services from the date of death and reduced to present value.  Fla. Stat. § 768.21(1).  A showing of probability as to the amount of damages is not required, but the evidence still must afford a reasonable basis for the amount decided upon by the jury.  In evaluating loss of support and services, the survivor’s relationship to the decedent, the amount of the decedent’s probable net income available for distribution to the particular survivor, and the replacement value of the decedent’s services to the survivor may be considered.  Fla. Stat. § 768.21(1).  In computing the duration of future losses, the joint life expectancies of the surviving spouse and the decedent may be considered.Id.

“Support” includes contributions in kind, as well as sums of money.  Fla. Stat. § 768.18(3).   With the exception of large expenditures and specific evidence of support (e.g., mortgage, automobile, child support payments, tuition), the total amount of support is often difficult to determine.  Therefore, support is usually what is left over after subtracting the decedent’s expenses and funds that would make up the decedent’s net accumulations from the decedent’s probable income.  Recovery for Wrongful Death 2d, Vol. 1, Stuart M. Speiser, p. 140, et. seq.    

“Services” are tasks, usually of the household nature, regularly performed by the decedent that will be a necessary expense to the survivors of the decedent.  Fla. Stat. § 768.18(4).  When considering the value of services, one should take into account any services the decedent was accustomed to performing in the household or the business of the spouse which will have to be replaced by hired services.  Lithco v. Hamilton, 69 So.2d 776, 778 (Fla. 1954). The material consideration in an evaluation of lost services is the replacement value of those services to the survivors.  Rice v. Brown, 645 So.2d 1020, 1022 (Fla. 2d DCA 1994).  But, it is not necessary to hire replacements in order to recover damages for the loss of services.  Ethridge v. Piper Aircraft Corp., 559 F.2d 1027, 1029 (11th Cir. 1977), citing Smyer v. Gaines, 332 So.2d 655, 660 (Fla. 1st DCA 1976).

The surviving spouse may also recover for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury.  Fla. Stat. § 768.21(2).  The surviving spouse is entitled to compensation for past and future loss of such intangibles as love, sex, companionship, society, comfort and solace, and help in performing one’s tasks about the household.  David v. Brown, 774 So.2d 775, 777 (Fla. 4th DCA 2000); Lithco, 69 So.2d at 778.   Technical or mathematical calculations are impossible to make and the jury, guided by its judgment and everyday life experiences, is in the best position to make a fair assessment of these damages.  Angrand v. Key, 657 So.2d 1146, 1149 (Fla. 1995).   

Like the spouse, minor children of the decedent may recover the value of lost support and services from the date of the decedent’s injury to his death, with interest, future loss and support and services from the date of death and reduced to present value, along with lost parental companionship, instruction, guidance and mental pain and suffering from the date of injury.  Fla. Stat. § 768.21(1) and (3).  Generally, a healthy minor child may only recover lost support and services until the child reaches 25 years of age.  Fla. Stat. §§ 768.21(1); 768.18(2).  However, a minor child’s non-economic damages related to a parent’s premature death are not limited to the period of minority, but rather are limited to the parent’s normal life expectancy.  BellSouth Telecomms., Inc. v. Meeks, 863 So.2d 287, 292 (Fla. 2003).  The same considerations used to determine a spouse’s lost support and service apply to a child’s lost support and services.

The decedent’s personal representative may recover for the decedent’s estate the loss of prospective net accumulations of the estate which might reasonably have been expected but for the wrongful death, reduced to present money value.  Fla. Stat. § 768.21(6)(a).  Net accumulations are a part of the decedent’s expected net business or salary income, including pension benefits, that the decedent probably would have retained as savings and left as part of his estate if the decedent had lived his normal life expectancy.  Fla. Stat. § 768.18(5).  Net business or salary income is the part of the decedent’s probable gross income after taxes, excluding income from investments continuing beyond death, that remains after deducting the decedent’s personal expenses and support of survivors, excluding contributions in kind.  Id.  The purpose of net accumulations is to award what would have been earned over a decedent’s lifetime, and theoretically was lost by the decedent’s untimely death. Wilcox v. Leverock, 548 So.2d 1116 (Fla. 1989).  Thus, proof of net accumulations requires not only a showing of a fall in household income, but also that lower expenses did not offset the drop.  Barlow v. North Okaloosa Med. Center, 877 So.2d 655, 658 (Fla. 2004).    

Medical expenses due to the decedent’s injury or death may be recovered by a survivor who has paid them or by the decedent’s personal representative if the medical expenses have become a charge against his estate or repaid by or on behalf of the decedent.  Fla. Stat. § 768.21(5) and (6)(b).  Only medical expenses actually paid or for which a provider is seeking payment are recoverable.  See Dourado v. Ford Motor Co., 843 So.2d 913, 914 (Fla. 4th DCA 2003), citing Horton v. Channing, 698 So.2d 865, 869 (Fla. 1st DCA 1997).  For example, all expenses covered by insurance are recoverable (subject to reimbursement or subrogation claims by the insurer), but excess or additional expenses forgiven by a medical provider as the result of an insurance contract are not recoverable.  Id.  In recovering medical expenses, the estate should make note of the Collateral Source Rule of Fla. Stat. § 768.76, which would reduce the medical expenses recoverable by those paid by insurance unless the insurance contract contains a subrogation or reimbursement right.

Funeral expenses due to the decedent’s wrongful death may be recovered by a survivor who has paid them or by the personal representative for the decedent’s estate that have become a charge against the estate or that were paid by or on behalf of the decedent.  Fla. Stat. § 768.21(5) and (6)(b).

If a decedent’s parents or siblings were dependent upon him or her for support or services, they may also recover the value of lost support and services from the date of injury to death, with interest, and future loss of support and services from the date of death and reduced to present value.  See Fla. Stat. §§ 768.21(1), 768.18(1).  The word “dependent” connotates one who looks to another for aid or support, relies upon same, and one who would not be able to sustain himself without such aid or support.  Guillen v. Kitching, 354 So.2d 900, 901 (Fla. 3d DCA 1978).

Punitive damages are ordinarily not recoverable in traffic accidents against a negligent driver.  However, if the driver was impaired or operating his vehicle in some other grossly unsafe manner, then punitive damages could be recoverable.  See Fla. Stat. § 768.72.  Also, if the vehicle had a product defect which contributed to the accident, punitive damages could be available.

Representative Case

Estate of Decedent v. Defendant/Insurance Company – Thirteenth Judicial Circuit Court, Tampa, Florida – Trombley & Hanes, P.A. represented the estate and family of a truck driver killed in an automobile accident.  Trombley & Hanes negotiated a seven figure confidential settlement with the Defendant.   Trombley & Hanes, P.A. also had to file suit against a life insurance company who refused to pay the decedent’s life insurance policy.  Trombley & Hanes, P.A. was able to settle the matter to the family’s satisfaction.