Wrongful death cases must be handled differently than a personal injury case for several reasons, but specifically because the party that was killed as a result of the negligence is not available to testify and describe what happened in the incident. When determining legal action after a wrongful death, it is important to consider who you trust to be the voice for the deceased.
Florida Wrongful Death Act
The Wrongful Death Act states that losses from a wrongful death, including financial expenses, should be the responsibility of the negligent party and not the survivors. The Act applies to wrongful deaths caused by negligence, and may involve:
- Car accidents
- Medical malpractice
- Retirement and nursing home abuse or neglect
- Defective products
- Airplane accidents
- Some on-the-job accidents
The Investigation Process on Behalf of the Victim
As the victim is not able to tell their side of the story, it is important that a lawyer get involved in the potential claim as quickly as possible to start an investigation. The opposing party’s insurance company is at an advantage because they started investigating almost immediately after the incident; therefore, wrongful death attorneys can help level the playing field. Burnetti, P.A. encourages families to hire an attorney as soon as possible so that this investigation can start.
What Happens During the Investigation Process
The investigation usually involves having one of the retired law enforcement or military investigators employed by Burnetti, P.A., begin the investigation by:
- Immediately obtaining photographs
- Gathering witness statements
- Initiating conversations with law enforcement and/or government agencies that already started their investigation
The goal for the investigation is to determine what happened in the incident, and to preserve any potential evidence.
Protecting Evidence to Build Your Claim
Other important aspects of the investigation include Burnetti, P.A. sending spoliation letters to any individual and/or entity that may be in possession of the actual physical evidence, such as the vehicle, defective products, defective medical equipment, video evidence, etc. The spoliation letters inform the recipient of the evidence that needs to be preserved and not destroyed, damaged, discarded, repaired, etc.
Some evidence can be crucial to the potential claim and if not preserved, could severely damage a case. Burnetti, P.A. aggressively tries to protect evidence as early in the investigation as possible.
The Probate and Estate Administration Process
Another aspect of wrongful death claims that must be addressed early on involves the issue of probate. Probate is the legal process of administering the estate of the deceased person to resolve all claims (including gathering assets and applying them to pay debts, taxes and administration expenses) and distributing the deceased person’s property to beneficiaries as indicated in their will.
Most states require that a wrongful death claim can only be made by the personal representative of the estate of the decedent. This means that when a person dies, there is no longer a physical entity on this earth to deal with their legal matters. As a result, the courts have set up the system called Probate whereby an individual can be appointed to act on behalf of the deceased person.
After the initial investigation performed by Burnetti, P.A., a probate estate will be opened so that an individual can be appointed to pursue the wrongful death claim. Normally the next of kin is appointed as the personal representative of the estate; however, sometimes personal representatives are retained.
Pursuing Negligent Parties for Damages
After the personal representative is appointed, the personal representative then has the authority to pursue the negligent parties for damages. A wrongful death suit may be brought against the negligent party that caused the death, including a doctor or hospital, car or truck driver, or a pharmaceutical (drug) company. The potential damages recoverable are:
- Medical bills
- Funeral expenses
- Lost net accumulations (lost savings that the estate has incurred as a result of the decedent’s inability to save more money for the future)
- Survivors’ damages (i.e. pain and suffering, loss of companionship, loss of dependant care)
Who Is Entitled to File a Wrongful Death Suit
The survivors entitled to recover for the wrongful death vary depending on the circumstances. If the spouse survives, then the legal survivor would be the spouse. If there is no spouse, then the legal survivor would be children. If there are no children and no spouse, then the survivor would be the parents of the child; however, there are some exceptions to these definitions of survivor.
Contact Burnetti, P.A.’s Wrongful Death Attorneys
To win compensation in a wrongful death case, the defendant must be proven negligent. Lawyers at Burnetti, P.A. are experienced in wrongful death claims, and understanding the requisites and the legal process involved with proving negligence. If you would like to discuss potentially pursuing a wrongful death claim for a loved one that passed away due to negligence, contact us at 1-888-BURNETTI for a free consultation.
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