Personal injury claims and wrongful death lawsuits are thought by many to be virtually the same types of claims, but the truth is that the two are processed differently in the state court system. The primary difference with personal injury and wrongful death claims is who actually has legal standing to sue, along with what damages can actually be claimed.
In a personal injury suit, the actual injured victim has standing to file the claim, even if they are incapacitated. At that point someone will be given power of attorney to begin the claim filed by a personal injury attorney on behalf of the injured plaintiff.
The standing to sue for an injured person stops when they die, with standing then assigned to immediate family or the next nearest relative, which is determined by a set of categories based on the individual relationship to the decedent.
A wrongful death suit is a legal claim that is begun by the individual who is the personal representative for a decedent’s estate. The suit is filed by a wrongful death attorney on behalf of the estate who must prove the same essential facts that are necessary in a personal injury claim. The attorney must prove that the victim was fatally injured, and then prove that the defendant failed in providing a reasonable duty of care owed to the victim.
The actual legal meaning of wrongful death is essentially that the decedent was denied the opportunity to live out their life naturally due to death as if the injury had never occurred.
Negligence is still the central issue, just as in a personal injury lawsuit. However, the level of negligence can carry a much greater impact with a wrongful death claim, depending on the material case factors. The most extreme form is gross negligence, which must be proven in a jury trial. The state does not set percentages for gross negligence as they do standard negligence for each driver involved in a typical auto accident case. Gross negligence findings must be issued by a jury and can also result in punitive damages based on what actually transpired in causing the death, especially when the death occurred due to gross negligence such as drunk driving by the defendant.
Wrongful death claims are like personal injury claims with respect to the concept that they are not all equal in value. There is no practical way to put a general value on a human life, and each fatal injury case is unique in some factual evidence matter. The value of a wrongful death filing begins with the standard pecuniary financial damage claims in a personal injury claim such as immediate and future lost wages along with medical bills, property damage, and non-economic pain-and-suffering emotional damages resulting to the heirs as a result of losing their family member. Also included are additional damages depending on the situation the decedent’s survivors must reconcile following the death.
Those extended damages include, but are not limited to:
Burial expenses are normally the first additional damage claim in a wrongful death lawsuit for obvious reasons. Loss of future income by the deceased will usually be the next inclusion. This issue can greatly enhance the value of a wrongful death claim, especially when the victim is young and already employed in a professional field that produces a significantly high income level. Loss of inheritance can also apply when the individual is in a legal position of significant inherited wealth, such as being named in an established will or a member of a wealthy family. This claim can also include potential future inheritance from a lawsuit that is still in negotiation.
Loss of consortium often is available in either the wrongful death suit or a separate legal claim. Spouses will usually automatically be the administrator of the decedent’s estate, but other family members or dependents can also potentially file a claim as well.
Those members include the deceased persons children, spouse and parents and any blood relative or adopted sibling who is “wholly or partly depenedent on the decedent for support or services.”
FSA & 768.21 http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0768/Sections/0768.21.html
In Florida, loss of consortium claims for children born out of wedlock are standard for those who have lost a mother. Children born out of wedlock who are the biological children of a male decedent or have been acknowledged by the male decedent as offspring also normally have standing to file for loss of consortium and future financial dependence.
Wrongful death claims can be very complicated in the state of Florida and it is always necessary to have an experienced lawyer handing your wrongful death case.
Jack Bernstein, Injury Attorneys has over 31 years’ experience in handling wrongful death lawsuits and will evaluate your case free and fully for maximum financial damage award. We have a long track record of producing solid results for our clients and always protect all of their legal rights to financial damage compensation.