Arthur Liebling Attorney and Counselor at Law
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Death Claims

Facts you should know

A "wrongful death" occurs when a person is killed due to the negligence or misconduct of another individual, company or entity. Wrongful death can be caused by a car, motorcycle, pedestrian, aviation or boating accidents, medical malpractice, defective products, work related accidents and inadequate security.

An action for wrongful death is brought by the Personal Representative of the Estate of the decedent. The Personal Representative brings the action on behalf of the “Estate” of the decedent and the “Survivors” of the decedent. The most common survivors are spouses, children and sometimes parents.

Florida’s wrongful death laws are governed by Florida Statute §768.16, entitled the Wrongful Death Act. The Florida legislature says:

“It is the public policy of the state to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer.”

Florida Statute §768.18 defines Survivors as: the decedent’s spouse, children, parents, and when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters.

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DAMAGES ALLOWED BY FLORIDA LAWS ARE:

Support and Services: Each survivor may recover the value of lost support and services from the date of death as well as any future loss of support and services. This is based upon the decedent’s probable net income and the replacement value of the decedent’s services to each survivor.

Future Net Accumulations: This is measured by looking at the decedent’s earnings, savings, investments, equity and many other factors which all contribute to the overall wealth of the decedent and how much their estate would have been worth if they had lived to full life expectancy.

The Surviving Spouse may also recover for the loss of their spouse’s companionship and protection and for the mental pain and suffering they experience from the loss of their spouse.

Minor Children, if there is not a surviving spouse, are entitled to recover for the lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of the injury.

Parents of a deceased minor child may recover for mental pain and suffering. Parents of an adult child may also recover for mental pain and suffering if there are no other survivors of the decedent.

How do we prove the Damages in a Wrongful Death claim?

In a wrongful death action, the jury determines what is the fair measure of the damages.

DETERMINING THE ACTUAL FINANCIAL LOSS
The financial loss that is due to the surviving family includes loss of income, future earning capacity and medical and funeral expenses. To measure these losses, we consider the age, character and condition of the decedent, his or her past earnings, their future earning capacity, life expectancy and health. We also consider the circumstances of the survivors. This determination may seem simple, but it often becomes a complicated task. The main consideration in awarding damages is usually the decedent's circumstances at the time of death. For example, when an adult wage earner with young children dies, the major parts of the recovery are: 1) loss of income, and 2) loss of parental companionship, instruction and guidance.

Arthur Liebling uses experts to help measure and explain the financial losses our clients have suffered.

What about the loss of income of a person who did not work outside the home? As an example, when the decedent was a housewife who did not work outside the home, the financial loss is still quite significant. How so? Well, just imagine if rather than the wife being killed, her husband was injured to the extent that he could not work. In that situation, the wife could have sought employment outside of the home if she had to. So even though a spouse may have never had a traditional job, they still have significant earning capacity. Just because the wife chose not to work outside the home, does not mean that there is no loss of future earning capacity. In a situation like this, we use vocational experts to help us determine what types of jobs and income could have been earned by the decedent if they had decided to enter the job market and then calculate their earning capacity.

In addition to the lost income, the family will now experience increased costs and expenses to continue the services the decedent was providing or would have provided if they had lived. Jurors may not be knowledgeable regarding the monetary value of a housewife's services, so we use experts who can quantify the value of these services.

PUNITIVE DAMAGES
Punitive damages may be sought in cases of serious or malicious wrongdoing to punish the wrongdoer or deter others from behaving similarly. Before punitive damages can be sought, we must prove that there was malicious intent on the part of the wrongdoer. When our client has been killed by a drunk driver, we seek punitive damages.

How is wrongful death different from criminal homicide?

Both a wrongful death case and a criminal homicide case involve the death of a person. In a wrongful death case, the decedent's Estate pursues the claim in civil court to recover damages resulting from the death. In a criminal homicide case, the state prosecutes the case in a criminal court and seeks a jail or prison sentence.

One case does not preclude the other—both may occur.

In addition, a wrongful death case and a criminal prosecution for the same death may yield different outcomes that are, nonetheless, consistent. In the wrongful death case, the plaintiff must prove by the greater weight of the evidence that the defendant is at fault for causing the death. In contrast, the prosecution in a criminal homicide case must prove the elements of the criminal homicide beyond a reasonable doubt, which is a higher burden of proof than required in civil court. The varying burdens of proof explain why a defendant may be financially responsible for the wrongful death, but not guilty of criminal liability.

An example of this would be O.J. Simpson. He was found not guilty in the criminal trial, but was found to have killed Ronald Goldman by the civil jury. The civil jury awarded the Goldman family $33.5 million dollars in damages for the death of their son.

How much time do I have?

The statute of limitations in Florida for a death claim is only 2 years from the date of death.