Why Your Relationship Matters In Florida Wrongful Death Accidents
As an Orlando wrongful death attorney, I regularly receive calls from those facing the worst of all imaginable situations, which is that they have lost loved ones as a result of someone else’s negligence. Some have lost spouses, children, infants, parents, siblings, or other relatives. In those cases, the caller’s actual relationship with the person who died (which the law calls a “decedent”) really matters.
The relationship matters for many reasons. For one thing, under Florida’s wrongful death statute, only certain family members can recover anything. (This article relates only to auto death accidents, or other negligence cases that caused a death; medical malpractice wrongful death cases have even more limiting rules about who can recover.)
For wrongful death cases caused by anything other than medical malpractice, such as a car accident, trucking accident, or a motorcycle accident, only certain relatives can recover for death accidents.
Who Can Sue For Wrongful Death Accidents?
Under Florida’s wrongful death statute, the personal representative of the decedent may file a lawsuit for the benefit of: (1) the decedent’s estate; and (2) the decedent’s survivor’s. Each of those two categories are entitled to different types of damages. The personal representative of the estate files the wrongful death lawsuit on behalf of all survivors, and the estate.
Do You Need A Probate Attorney For Wrongful Death Accident Cases?
Survivors must hire a probate attorney, and create an estate, to pursue a wrongful death lawsuit. However, probate attorneys are not generally knowledgeable about wrongful death accidents. Probate attorneys are relatively small players in wrongful death lawsuits. We hire probate attorneys on behalf of our clients, when needed. The probate attorneys set up the estate, and we handle the wrongful death lawsuit aspect of the estate. In other words, calling a wrongful death attorney first, after any accident leading to death, makes the most sense. We need to quickly evaluate whether evidence needs to be gathered or preserved to ensure the highest value for the wrongful death case. And we hire a probate attorney when needed (and we pay this cost, at no cost to survivors, until we win their case).
Which Survivors May Recover Under Florida’s Wrongful Death Statute?
Wrongful death survivors include the decedent’s spouse, children, parents, and, when partly dependent on the decedent for support or services, any blood relatives, and adoptive brothers and sisters. Survivors include any child born out of wedlock of a mother, but not children born out of wedlock of a father, unless he recognized responsibility for supporting the child.
The estate is entitled to one grouping of damages, and survivors another.
What May The Estate Recover In Wrongful Death Accident Cases?
The estate, in certain situations, may recover loss of net accumulations, decedent’s lost earnings, and the decedent’s medical and funeral expenses.
But there are complicated rules that can limit the amount the estate may recover. For example, if a survivor recovers for lost support, those amounts are subtracted from what the estate may recover. Loss of net accumulations means the amount the decedent would have earned or acquired during his lifetime. Experts calculate these amounts, based on a combination of factors, such as life expectancy, income, and average income increases. Confusingly, whatever the estate recovers, is distributed to survivors, and creditors. Still, certain survivors have their own claims.
What May Survivors Recover In Wrongful Death Accident Cases?
First Category Of Survivor Wrongful Death Damages: Lost Support & Services
Each survivor may recover for lost support and services. This includes lost financial support, and lost property gifts, but also things like lost help with household chores. For example, if a young mother was tragically lost, part of her husband’s damages would include literally the cost of replacing her cooking and cleaning around the house, and caring for the couple’s young children. (Of course, he would also receive money for his pain and suffering, assuming he otherwise had a solid case.) This would also include any free work that she did, for example, for any family business. But the replacement value of lost services literally means we estimate the lifetime value of the services previously performed, for particular survivors, by the person who died. The survivors who would have benefited from those services are the ones entitled to recover for them. This means that the value of lost services varies, depending on the survivor.
What Factors Are Considered When Calculating The Value Of Lost Support & Services?
In calculating the value of lost support and services, Florida law allows a jury to consider these factors: (1) the survivor’s relationship to the decedent; (2) the amount of the decedent’s probable net income, which any particular survivor likely would have received; and (3) the replacement value of the decedent’s services to any particular survivor.
Why The Relationship Matters To The Value Of Lost Support & Services
The strength of the survivor’s relationship with the decedent may be a HUGE factor in the value of Florida wrongful death cases. This means that things like infidelity, marital discord, and estranged relationships with the person who died, may definitely impact on case value. On the other hand, sometimes there are ways to minimize the negative impact of these problems. So, if you are facing this type of situation, you absolutely should RUN to an Orlando personal injury attorney, before discussing your concerns with any other person on planet Earth. If you tell your lawyer all of the problems, they may (or may not) be able to minimize or even eliminate the negative impact of relationship problems.
Other Factors Considered When Valuing Lost Support & Services
The jury may consider many other factors when valuing lost support and services in a wrongful death accident case. (Although 99% of cases settle before trial, settlement negotiations are based on predictions about what a jury might award. So that’s why what a jury could consider is very important.)
In calculating the value of lost support and services in a wrongful death accident case, the jury may also consider:
- the age and life expectancy of the survivor
- how many years until minor children become adults
- the life expectancy of the decedent
- lifetime earning power of the decedent, including likely promotions
- probable increased needs of dependents
- probability that the decedent would have helped the survivors (based on evidence about relationships, history, and tendencies)
- degree of support previously provided by decedent, and the spirit with which that support was provided (meaning: enthusiastic versus reluctant)
- amount contributed in the past
- closeness of relationships
- relationship problems
- health of decedent
- any other factors proven relevant to likely lost value
Important: the factors above relate to how to calculate LOST SUPPORT AND SERVICES, which is just one several categories of damages that are available to survivors in a wrongful death action.
Second Category Of Survivor Wrongful Death Damages: Lost Companionship, Instruction, And Guidance
Another category of wrongful death damages available to certain survivors is lost companionship, guidance and instruction. These numbers are very difficult to quantify. We do not have any sort of “settlement calculator,” or statutory chart, or anything that with specific values. These are what we call “intangible” losses. The jury can give this item of damages any value they want, after hearing testimony from anyone who has suffered this loss, and all other evidence.
Florida’s wrongful death statute says that a surviving spouse, minor children (under age 25), and, if there was no surviving spouse, adult children, may recover whatever the jury deems appropriate for lost companionship, instruction, and guidance. However, a surviving parent may not recover this particular category of damages.
The primary factor in calculating these damages is the quality of the relationship, rather than the time spent together. So evidence of relationship difficulties, marital discord, or infidelity, may be admissible to reduce the value of these damages. Conversely, evidence of a loving relationship, improvements on relationship difficulties, shared hopes, dreams, and plans, or lots of time spent together, may increase these damages.
Third Category Of Survivor Wrongful Death Damages: Mental Pain And Suffering
Another category of wrongful death damages is mental pain and suffering. Five categories of survivors may recover pain and suffering damages in a wrongful death case based on an auto accident (NOT medical malpractice, which has different definitions for survivors):
- surviving spouse
- minor children (under 25)
- adult children if there is no surviving spouse
- each parent of a deceased minor child
- parents of an adult child when there are no other survivors
Is There A Wrongful Death Settlement Calculator Or Chart?
Similar to lost companionship, guidance and instruction, mental pain and suffering damages are considered “intangible” losses. No settlement or verdict calculator can give you their value. Even attorneys have difficulty placing numbers on the value. All settlement discussions are focused on predicting what a jury would award. But there aren’t even any numerical guidelines in the law. So the jury can literally decide whatever they want.
How Can You Increase Pain & Suffering Damages In A Wrongful Death Case?
The only way to increase an award is to find or develop evidence that proves the strength of the relationship, and the details about how the loss has affected a particular survivor. When the loss is real and profound, details increase case value. For example, testimony about the strength and duration of tears, nightmares, screaming episodes, inability to function or get back to the enjoyable aspects of life, loss feelings associated with things that will never happen, and any other detailed facts related to the degree of loss experienced, can all help convey the depth and reach of your loss. For example, evidence regarding necessary psychiatric treatment, or loss of work, is admissible to help prove the pain and suffering. Witnesses, such as friends, ministers, and anyone else who has watched your suffering, can also help tell your grief story. In some cases, the judge also may allow a pscyhiatric expert to help the jury understand your loss.
What Evidence Might Reduce Pain & Suffering Damages In A Wrongful Death Case?
On the flipside, evidence of marital discord, infidelity, divorce plans, estranged relationships, lack of a loving or affectionate relationship, and other significant relationship problems, may reduce case value. In those situations, the goal is to work closely with your lawyer to discuss possible ways to minimize any potential problem evidence.
For parents who have lost minor or adult children, the jury may consider whether the parent showed love, affection, concern, or support for the child.
What Other Issues Impact Pain & Suffering Value In Wrongful Death Cases?
Attorneys can research settlement and verdict values from other wrongful death accident cases. However, over time, the reported verdicts and settlements, statewide, reveal hugely inconsistent awards in factually similar cases.
Many issues can impact case value, including what evidence is admitted or excluded, whether the jurisdiction is liberal or conservative, the judges, the lawyers, and the strength of witness testimony about the lost relationships. The only thing you can control is not talking to insurance adjusters about your case, choosing your lawyer, and making sure you share, with your lawyer, all important details about the strengths and weaknesses of your relationship.
Should You Discuss Your Wrongful Death Accident Case Value With An Insurance Adjuster?
Whether you had relationship problems, or not, you would be a fool not to hire a lawyer before speaking, or even writing, ONE WORD to an insurance company adjuster. This includes phone calls, emails, and recorded or unrecorded statements, by you, or anyone acting on your behalf.
In any wrongful death case with strong liability, and good insurance coverage, an insurance adjuster WILL be hot on the trail of trying to get information from you. They will disguise this goal as merely an attempt to get you paid. The reality is that they are trying, like crazy, to get information that lets them off the hook for payment. Just your reaction to your loved ones’ passing is relevant. For example: were you crying? Additionally, details about your relationship, whether you had problems in your relationship, the last time you saw your loved one, how much support or income you received from your loved one, other survivor relationships, and the accident itself, are all highly relevant to case value. Bottom line: an insurance adjuster is only looking for evidence to reduce your case value. Don’t be the person who gives him everything he needs to destroy your case. I can NOT overstate the importance of your not speaking to the adjuster, or even writing or responding to an email.
Your insurance adjuster may be able to testify against you. Additionally, even if they cannot testify against you, they can use whatever they learn to inform their willingness to engage in settlement negotiations, and their offer amount.
Also, you have no obligation to speak to an adjuster, return or answer his calls, or anything else. The only obligation is that, the decedent’s own insurance company must be notified that the accident happened, fairly shortly after the accident (often 30 days but not always). But you should have an attorney make that first contact.
If you have any questions about your potential accident wrongful death case, you can call or text me anytime. I return calls and texts personally, at my first available opportunity. I try to speak with victims immediately, or very quickly, whenever possible.