When an individual’s intentional conduct causes extreme physical harm leading to death, a wrongful death suit is imminent. Nothing hurts worse than losing the family breadwinner, someone who you loved for decades. Unfortunately, mortgages and living expenses are impervious to your depressed emotional state, and must be paid.
What happens if an individual ends up living through a tragic accident, but suffers physically and passes away later on? An infrequently visited area of Florida law involves survival actions, which mirror wrongful death actions but have slightly different implications. Let’s explore both to determine which may apply to your catastrophic situation.
Wrongful Death Action in Florida
Whether at work, while vacationing or during one’s regular commute, an injury resulting in death is an omnipresent threat in Florida. They happen daily, in fact, wrecking families that rely on their loved one. Once the funeral arrangements are finalized, or perhaps before, the loved one or executor of the decedent’s estate will retain counsel and may file wrongful death action against the negligent party.
Unless the aggrieved party settles prior to trial, an often emotional jury trial will ensue. When done, the jury will award damages based on the replacement value of decedent’s services to surviving loved ones, probable income that needs to be replaced, the decedent’s relationship to survivors, and other potential non-economic and financial compensations.
Once the trial wraps up, the state may bring criminal charges against the negligent party. Other families may join suit, or file separately. More importantly, although someone wins financially, everyone loses when an avoidable accident takes another’s life.
According to Florida tort laws regarding negligence, wrongful death action can be brought for deaths on navigable waters, and comparative negligence can be brought in defense of these claims.
Survival Action in Florida
Unlike wrongful death litigation, survival actions normally ensue when negligence leads to serious bodily harm, but then later turns into death. Normally, families will have already established suit during the initial accident, although they may not have settled yet. Once an individual’s condition worsens, and tragically ends their lives, the attorney will enhance the current suit with a survival action.
Once filed, your wrongful death attorney will fight for damages indicative of one’s suffering, loss of consortium and income, along with the inability to maintain the standard of living enjoyed prior to the accident. Should an individual pass away, loss of future income and other related expenses may be awarded.
Typically, Florida courts request that attorneys choose between a survival action and a wrongful death action, but not both. Which action your counsel chooses is specific to facts surrounding the accident and whether death was immediate, or an extended period of suffering ensued.
One situation that can arise may allow families to sue for both simultaneously.
Survival Action and Wrongful Death Action May Happen Simultaneously
Let’s say Bob went shopping and sustained an injury after slipping on an unmarked wet floor. He and his attorney file a premises liability action against the store, and the case is pending adjudication. However, while waiting for remuneration from his fall, Bob is dead driving to work. Under this circumstance, Bob’s family or the individual listed on his will could continue the grocery store case by filing survival action.
Then there’s his death, a completely separate incident that involved an intoxicated semi-truck driver. Bob’s family files wrongful death against the trucking company and their insurer, which is concurrent to the grocery store incident.
Although these cases are rare, they’re feasible in situations above. No family should have to experience two incidents simultaneously, yet Florida laws allow financial compensation to be collected in premises liability cases and car accidents, even if they happen to one person at separate times.
Faqs About Wrongful Death and Survival Action
Of the frequently asked personal injury questions families may have, inquiries regarding wrongful death and survival actions are quite common. Losing loved ones leaves many unknown questions that need answering. Let’s explore some of them.
Can families sue hospitals for wrongful death?
Under medical malpractice laws, if any healthcare facility is directly negligent for an individual’s loss of life, a wrongful death action is appropriate. Proving healthcare facilities caused death requires a unique yet cohesive approach to fact discovery.
If my parents both died in the same car accident, do I file one suit?
Florida law recognizes each individual as having his/her own estate. In most cases, your parents may have separate life insurance and car insurance policies, and separate wills. If you’re an executor to both estates, each estate may file separate wrongful death action. It’s possible that each parent’s insurer would pay an equal amount to make the survivor(s) whole.
Do people ask for compensation for emotional distress in wrongful death cases?
Unless the action is against state or Federal agencies, Florida allows survivors to seek compensation for emotional distress the death caused them, generally with no cap. Juries have standard instructions they must follow when awarding damages; consult with your attorney to learn more.
Can strangers who witnessed wrongful death sue for emotional distress?
While we’d be remiss to outright say no, note that proving an onlooker experienced emotional trauma is much harder than it appears. Short of admittance into a psychiatric facility and having witnesses testify to their mental discord which caused an extended absence from work, it’s an uphill battle for sure. Consult with an attorney for clarification.
Can friends file survival action if no family steps forward?
Family members are presumptively in charge of a decedent’s estate. If no children, parents or siblings step forward, and a close friend of the deceased wishes to file survival action, consulting with an attorney may provide better clarification.
Remember, wrongful death and survival action encompass two unique parts of law.
One should consider hiring counsel knowledgeable in survival action and wrongful deaths.
Have a potential survival action or wrongful death suit, but wonder what options survivors have? Call 1-888-BURNETTI or fill out the form above to begin. We answer phones around the clock.