If you have lost a loved one in an auto accident caused by the wrongful act or negligence of another, you may have an action for wrongful death. Maximizing recovery following the wrongful death of a loved one requires an understanding of who can sue, who can recover, what potential damages are, and what is the deadline for bringing a claim.
Who Can Bring a Wrongful Death Action
A wrongful death action is brought by the personal representative of the person killed (referred to in the law as the decedent). The representative may be the executor of the will, if there is one. If not, the representative will be appointed by the court. Although the wrongful death claim is filed by the personal representative, it is brought on behalf of the decedent’s estate and any surviving family members. Under the Florida Wrongful Death Act, the following family members may be able to recover damages in a wrongful death action:
- Spouse
- Children
- Parents
- Blood relatives and adoptive brothers and sisters (when “partly or wholly dependent on the decedent for support or services”
A child born by unmarried parents can recover wrongful death damages if his or her mother dies. If the father dies, the child can only recover damages if the father has “recognized a responsibility for the child’s support.”
Money Damages Recoverable in a Wrongful Death Action
Florida law allows the survivors in a wrongful death action to recover for both financial loss, as well as mental pain and suffering, resulting from the death of their loved one. Both past and future damages will be assessed, and may include:
- Each survivor may recover the value of support and services decedent has provided to surviving family members;
- Surviving spouse may recover for loss of companionship and protection, as well as for mental pain and suffering;, guidance, and protection;
- Minor children may recover for lost parental companionship, instruction, and guidance, and for mental pain and suffering; and
- Loss of earnings of the deceased.
A Word About the Statute of Limitations for Wrongful Death Actions
A wrongful death action must be filed within two years of the date of death. Under certain circumstances, the statute of limitations may be suspended or “tolled,” including:
- Absence from the state of the person to be sued;
- Use of a false name by the person to be sued; or
- Incapacity of the person entitled to be sue (extends statute of limitations to no more than seven years after the date of death.
In addition to the statutory “tolling” provisions, Florida courts have recognized that the filing of a petition in federal bankruptcy court may also toll the two-year time period, as well as the possibility of “equitable tolling” for reasons not set forth in the statute.
Where to Get Help
If you have lost a loved one as a result of the wrongful conduct of another, contact a personal injury lawyer to discuss your case today.