Wrongful Death And What You Need to Know
Clearwater Personal Injury Lawyer Mark Perenich
Mark has handled numerous wrongful death cases all throughout Florida. Call today for a free consultation 727-386-9677
Water Drowning Wrongful Death Cases
In May of 2002, a 52 year old husband drowned at St. Andrews State Park in Panama City, Florida after he attempted to rescue two 20 year olds who had been swept out into the Gulf of Mexico as the result of a severe rip current. Although he successfully rescued one swimmer, he drowned attempting to rescue the other swimmer. A U.S. Coast Guard rescue diver saved the second swimmer. Suit was brought against the State of Florida Department of Environmental Protection by Mark H. Perenich in Bay County, alleging that the State had failed to provide an adequate warning system to alert beach goers of dangerous rip currents that regularly cause vacationers to drown along the waters of the Panhandle. After numerous depositions and court hearings, the case was eventually settled with the state of Florida Department of Environmental Protection. There were no open-water life guards on duty at the time the two swimmers were swept out into the Gulf of Mexico.
Then in July of 2003, a 14 year old girl drowned at Panama City beach after she and three others who were walking in thigh deep were swept into the Gulf of Mexico by rip currents during the 4th of July holiday celebration. The young girl had come to the beach from Alabama with a church group, which was well attended with church parents as chaperons. A nearby beach goer went into the water with a boogie board and was able to rescue everyone except the 14 year old girl. There were no open-water life guards on duty. Mark H. Perenich filed another wrongful death lawsuit in Walton County on behalf of her estate and surviving parents, who were devastated by the unexpected loss of their daughter. In the course of the litigation, it was learned that the beach patrol employees working for the City of Panama City Beach had witnessed numerous times locals and tourists had been unsuspectingly swept out into the Gulf of Mexico. Mr. Perenich retained “Dr. Beach,” a nationally renowned expert from south Florida who had documented how rip currents develop and strengthen and how they were especially prevalent only to the Panhandle of Florida because of the deep slope of the continental shelf. After the case was settled, the parents allocated the proceeds to a non-profit foundation designed to bring attention to the dangers of rip currents in the hopes of preventing future tragedies.
Mr. Perenich was able to successful prosecute these cases in Bay County and cases throughout the State of Florida, in part, because he is an instrument rated private pilot with access to a Beach Bonanza A-36.
Laws – Wrongful Death:
What is wrongful death?
When a person dies due to the negligence or wrongful conduct by someone else, it’s considered as a Wrongful Death. Deaths due to Battery, Car accident, defective products etc. are the common examples of wrongful death. Wrongful death is a complicated area when it comes to litigation as there are many complexities and exceptions involved, a personal injury lawyer is someone who MUST be consulted regarding the particular laws in case of Wrongful Death.
The laws regarding Wrongful Death in Florida come under Florida Code § 768.16 -768.26, which is cited as the ‘Florida Wrongful Death Act’. The definition of Wrongful death can be found in the § 768.19 (Right of action) itself which states implicitly that death of a person caused by wrongful act, negligence, default, breach of contract, or warranty of any person is considered wrongful death.
Statute of Limitations
Under Florida laws, the time limitation for filing a Wrongful death lawsuit is 2 years but as always there are exceptions to the rule, in the case of wrongful death there are one too many.
- Claims for wrongful death under medical malpractice come under the statute of limitations of limitations of Medical Malpractice, which allows claims to be filed within a 4 year period from the date of incident which caused the death.
- Wrongful death lawsuits against government entities normally have a limitation of 4 years but it can differ depending upon other circumstances related to the case.
- In cases of Injury arising due to negligent action of someone which later results in death, lawsuit for wrongful death can be filed only within the period of negligence action within the 2 years statute of limitations for wrongful death, else they won’t be considered.
- If the defendant dies during the litigation for wrongful death, the personal injury lawyer representing the plaintiff has to file a motion within 90 days to substitute the personal representative of the estate of defendant in place of the defendant. If the motion is not filed within the prescribed period the claim would be barred.
Who can file a wrongful death Lawsuit?
When a wrongful death occurs, the Act clearly states that the Lawsuit should be filed by – the personal representative of the estate of the Deceased
Estate – When a person dies all the property that the deceased owned during the lifetime constitutes his or her estate.
The personal representative of the estate is allowed to file a wrongful death lawsuit to claim damages on the behalf of the estate beneficiaries and on behalf of the decedent’s ‘survivor’.
Sometimes the estate beneficiaries and the ‘survivors’ are the same people but the difference lies in the type of damages that are awarded. The damages that can be claimed by a survivor differ from the damages that can be claimed by a decedent’s estate.
Who are considered as Survivors?
According to Florida Code § 768.18 (1), those who count as survivors are –
- Spouse of the decedent
- Children of the decedent
- Parents of the decedent
- Blood relatives, adoptive brothers and adoptive sisters who were partially or fully dependent on the decedent for support or services.
Damages awarded for Wrongful Death
The damages awarded in cases of wrongful death differ for survivors and the estate of the decedent. Florida Code § 768.21 allows the following damages that can be awarded in cases of wrongful death
Damages Awarded to Survivors –
- Each survivor of the decedent can recover damages for the loss of ‘Support and Services’, for the period between when injury was caused till death of decedent and also for future. As defined by § 768.18 (3) support means any kind of benefaction whether in cash or kind. § 768.18 (4) defines services as any kind of chores which were always carried out by the decedent and for which the survivors will have to bear unnecessary expenses.
- If the survivor is the living spouse of the decedent, he/she can claim damages for loss of ‘Companionship and Protection’.
- Minor Children of decedent and children of all age of decedent, in case of no surviving spouse can claim damages for loss of ‘Parental Instruction, Guidance and Companionship.’
- Surviving spouse, Minor Children of decedent and children of all age of decedent, in case of no surviving spouse can also claim damages for ‘Mental Pain & Suffering’
- Damages for ‘Mental Pain & Suffering’ can also be claimed by each parent of deceased minor child / each parent of an adult child in case of no other survivors.
- Survivor(s) who paid for the medical expenses in case of decedent’s injury and funeral expenses because of death can claim damages for those expenses.
If the wrongful death occurred due to medical malpractice, decedent’s adult children (above 25) or Parents (no other survivors) cannot claim non-economic damages.
Additionally, there were caps on non-economic damages that can be claimed by survivors in case of Medical Malpractice but they have been removed by the Florida Supreme Court in a 5-2 ruling (13th March 2014) stating that caps on non-economic damages in cases of Wrongful Death due to Medical Malpractice violated Florida constitution’s equal protection clause.
If you are a survivor in a Wrongful Death Lawsuit a Personal Injury Lawyer must be consulted on the kind of damages you can claim regarding the particular case.
Damages Awarded to the Estate –
The estate of a decedent can claim damages for –
- Loss of earnings of the decedent, for the period between the injury and death.
- Medical Expenses in case of injury and funeral expenses of the decedent (If not paid by survivor(s))
- Loss of Net Accumulations of the estate.
It is important to note that in cases of Wrongful Death, Punitive damages can also be awarded if the defendant is found guilty of gross negligence or intentional misconduct
Difference between Survival Action and Wrongful Death
A survival action is filed when the decedent had suffered an Injury before the death and experienced pain and suffering due to it. A survival action can basically be considered as a personal injury claim which lasts even after the death of a person. Damages that can be claimed in a Survival action are the same damages which the deceased would have claimed if he/she was alive after the death which would generally have comprised of – loss of wages, medical expenses, loss of future income, pain and suffering, lots of care etc.
The basic difference between survival action and Wrongful death lies in to whom are the damages awarded and the nature of the damages. In a Survival Action, the damages are awarded only to the ‘estate of the decedent’ while in Wrongful death the damages are also awarded to the survivors. In survival action the kind of damages which can be claimed are limited to the damages which the deceased would have claimed in case he / she would have survived the injury which includes damages for pain and suffering of the deceased prior to his / her death. In wrongful death damages can be claimed by the survivors on various grounds which have been discussed above.
Under Florida laws, damages can be recovered only for either survival or wrongful death, not for both though some states in the country have legislation which allows damages to be recovered for both type of action.
An experienced personal injury lawyer is the best person to advice on whether a survival action or wrongful death should be filed regarding a particular case.
Do I have a wrongful Death Case?
For a free evaluation call 727-386-9677