A wrongful death case arises when someone dies due to the negligent, reckless, or intentional actions of another person or entity. A wrongful death case allows the surviving family members and the decedent’s Estate to seek compensation for losses. Florida Statutes Section 768.16 - 768.26 is collectively known as Florida’s Wrongful Death Act, and it is the body of law that governs these types of cases. 

Only the Personal Representative of the decedent’s Estate is allowed to file the lawsuit in a Florida wrongful death case. However, the Personal Representative brings the case for the benefit of the Estate and its “survivors”.  Not everyone related to the deceased person is a legal “survivor”. Rather, Florida Statute 768.18 tells us who counts as a “Survivor” in a wrongful death case: 

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0768/Sections/0768.18.html

•  The decedent’s spouse
•  The decedent’s children
•  The decedent’s parents
•  Any blood relatives and adoptive brothers and sisters who were partially or entirely  dependent on the decedent for support or services
•  A child born out of wedlock of a mother, but not the child born out of wedlock of the father unless the father has recognized a responsibility for the child’s support.

Florida Statutes Section 768.20 says that the Personal Representative of the Estate is the only person who can bring the Wrongful Death lawsuit to court. Thus, they are deemed the Plaintiff. (The person or entity being sued is the Defendant). The Personal Representative is the person charged with making important decisions that will affect the survivors, such as whether to accept a settlement offer. The Personal Representative’s actions and decisions are meant to benefit the Estate and the survivors. The Personal Representative also acts as the “point person” - they are often the person who communicates with the lawyer, and the person who shares important information with the survivors. 

The personal representative does not have to be one of the survivors. In other words, they don’t have to be someone who will actually benefit from the Estate. Some families have differing opinions on who would best serve as the Personal Representative. This can lead to arguments and hurt feelings, which makes grieving that much harder. The court may have to get involved to make the best decision for your family.

If the decedent had a Will, that document would have nominated a particular person to be the Personal Representative. If that person is no longer alive or capable, or is otherwise unwilling, the Will likely also named a secondary choice for Personal Representative. If neither is available, or if there is no Will, a Personal Representative often ends up being the decedent’s spouse. If there is no spouse, or if the spouse is not capable or otherwise unwilling to serve as Personal Representative, the majority of the survivors can choose someone to fill the role. Ultimately, the Court may select anyone it thinks is a wise and capable choice to act as the Personal Representative. 

The Court will issue “Letters of Administration”. This is the document that authorizes the Personal Representative to take certain legal actions on behalf of the Estate and in the best interest of the Estate and the survivors. 

Florida’s Wrongful Death Act allows for certain damages to be recovered by certain types of survivors. For instance, a spouse and a child are not entitled to the same types of damages. Generally, however, damages may include medical expenses, funeral and burial costs, loss of income, loss of companionship, emotional distress, and sometimes punitive damages if the defendant’s actions were particularly egregious. The specific damages allowed to specific survivors are outlined in Florida Statutes Section 768.21. 

The compensation amount is determined based on various factors, including how the incident occurred and whether your loved one had any part to play in his or her own death, the deceased’s earning capacity, the financial dependence of the survivors, medical and funeral expenses, and the emotional impact on the family.

The statute of limitations for a wrongful death case varies from state to state. As of the time of this writing (September 2024), the Statute of Limitations in Florida for a wrongful death case  is two years from the date of death. However, the legislature can change the Statute of Limitations at any time. To protect your rights, it’s crucial to consult with us at Neal & Solevilla as soon as possible to ensure your claim is filed within the appropriate time frame. 

Although you are grieving, keep in mind that it takes time to develop the evidence necessary to successfully bring your Wrongful Death case. Also, you need to allow time to add additional defendants into the lawsuit, if it becomes clear during the discovery process that there were actually more wrongdoers than originally thought. FOr this reason, waiting until the eve of the expiration of the Statute of Limitations can be a detrimental mistake. 

While it is not legally required, having an experienced wrongful death attorney is highly recommended. Rather than toot our own horn, we found a very helpful article by Forbes located at https://www.forbes.com/advisor/legal/personal-injury/personal-injury-settlement-amounts/

It says, in part: “When you’re in a personal injury dispute, the other side is going to have a team of legal professionals. The insurance companies on the other side of the table are going to be represented by lawyers who work on personal injury cases—and personal injury settlements—all the time. If you don’t have an attorney, you’ll be on the other side of the table all alone. Your personal injury lawyer’s experience and perspective can make a huge difference in reaching a favorable settlement. From the first meeting to discuss your case, they will be learning the individual elements of your particular claim and figuring out the best way to get a favorable settlement or verdict.  An attorney will bring their experience to assessing the value of your case and any settlement offers you receive.” 

At Neal and Solevilla, we will navigate the complex legal process, gather the necessary evidence, and advocate on your behalf to achieve fair compensation for your loss.

Evidence may include accident reports, accident reconstructions, surveillance videos capturing the incident, scene photographs, eye-witness testimony, medical records and reports, diagnostic imaging results, expert opinions, financial records, family photographs, survivor’s testimony, mortality tables and any other documentation or item that demonstrates the defendant’s liability or the impact of the death on the survivors.

This is actually quite common. Depending on the specifics involved in your case, it is certainly possible that your loved one died not only because of the negligence of the wrongdoer, but also in part because of his or her own actions or choices. There may have been a combination of factors that all worked together to cause his or her death. It may be very hard for survivors to admit their loved one may have made a bad decision or poor choice that led to his or her own death, even in part. This is in part because as soon as someone we love dies, we start to imagine that they were perfect. Even still, the possibility of the decedent’s fault is something every survivor needs to consider and be willing to discuss with their lawyer. 

This is where the concept of “contributory negligence” or “modified comparative negligence” comes into play. A little background here is helpful. Until 2023, Florida was known as a “comparative negligence” state. This meant that in a wrongful death case, a survivor could bring a legal case in front of a jury and recover for their losses, even if the decedent was mostly at fault for causing their owen death. Technically, even if he was 99% at fault for his own death. The verdict would simply be decreased by the decedent’s percent of fault for causing the incident that led to his death. For example, if the jury awarded a $1,000,000 verdict but determined that the decedent was 60% at fault for causing his own death, then the judge would reduce the verdict by 60%. The Plaintiff would still recover something – in this case, $400,000.

But then came March 2023.

That’s when Florida’s Legislature passed The Florida Tort Reform Act of 2023 (also referred to as HB-837) which was immediately signed into law by Governor Ron DeSantis. This law brought about many changes, each one aimed at making it harder for injured victims and survivors to succeed at trial against the wrongdoer.

Under Florida Statute 768.81, a survivor can still bring a legal case before a jury even if the decedent was partially at fault for causing his own death, but if the jury determines that the decedent was greater than 50% at fault, the Estate and survivors are not allowed to recover anything. 

Due to the change in Florida Law, it has become more important than ever to consult with Neal and Solevilla regarding your rights as quickly as possible. We will help you navigate the complexities to ensure the best possible outcome.

A wrongful death lawsuit is a civil case, and is entirely separate from the criminal case in which the wrongdoer may be held criminally liable for the incident that caused your loved one’s death. We often work hand in hand with the State Attorney’s Office, securing and sharing evidence that will benefit both cases - your civil lawsuit for Wrongful Death and the criminal prosecution of the wrongdoer. 

It is possible that the outcome of the criminal case and the outcome of our civil wrongful death case will be different. For instance, sometimes the wrongdoer is found not guilty in the criminal case, but held civilly liable for the wrongful death of your loved one. When this happens, it is often because the burdens of proof that are required are different in a criminal case than a civil case. 

The prosecution in a criminal case has the burden of proving that each element of the crime is satisfied. The burden of proof in a criminal case is “beyond a shadow of a doubt”. This is the highest standard of proof possible, and it’s appropriate in a criminal case because the stakes are the highest - there is a possibility that someone may lose their liberty.  

The standard of proof in a Florida civil case is “a preponderance of the evidence”. This is a lower threshold than a criminal case, and its appropriate because what’s at stake is money, rather than someone’s liberty. “Preponderance of the evidence” means more likely true than not. It basically means our side needs to be more convincing than the other. 

Thus, two different juries may have two different results. The criminal jury may not be convinced that each element of the crime is satisfied beyond a shadow of a doubt, while the civil jury finds the Plaintiff’s side is more likely true than not. 

Our team at Neal and Solevilla will use all available evidence to build a strong case for you, so that we can clearly prove every element by a preponderance of the evidence.