There are actually two categories of wrongful death damages that can be rewarded under Florida’s Wrongful Death Act. The first are damages that the decedent’s survivors may recover. (“Survivors” are people defined by Florida’s wrongful death statute as being entitled to damages for the death of a loved one.) And the second are damages that the decedent’s estate may recover. (The estate is basically what the decedent left to any beneficiaries under his will or others in his lineage defined by something called an “intestacy” statute whenever there is no will.) Generally speaking, the estate cannot recover as many important categories of damages as the survivors (particularly pain and suffering from the loss–only survivors can recover pain and suffering).
Wrongful Death Damages: What You Can Recover
- Lost Support and Services
- Loss of Decedent’s Companionship and Protection
- Mental Pain and Suffering
- Lost Parental Companionship, Instruction, and Guidance
- Medical or Funeral Expenses When Paid By A Survivor
The estate may recover damages only for:
- Loss of Net Accumulations
- Decedent’s Lost Earnings
- Decedent’s Medical And Funeral Expenses
What Are Support and Services?
Support and services are two categories of Florida’s wrongful death damages that are available to survivors. “Support” is defined by statute to include contributions in kind as well as money. So this means a survivor may recover lost contributions of both property and money. “Services” are things like daily tasks, usually around the house, which the decedent used to perform, but which now will be an expense for the survivors. As a simple example, if the decedent always mowed the lawn, then the price of hiring a new lawn maintenance person will be recoverable. But services can also be more sophisticated and expensive tasks like performing work for a business, even if the decedent performed those services for free. And the jury is entitled to award the replacement value of those services, even if the survivors do not replace the decedent with another person performing the same work. In terms of duration, the jury can consider the life expectancy of both the decedent and his or her survivors (when determining just how long the lost support and services would have lasted). The bottom line is that Florida’s Wrongful Death act tries to compensate the survivors for any loss of support and services they might have received from the decedent had he or she not passed away.
Loss support and services may sound fairly cut and dry. But there are a lot of opportunities for a creative and thorough Florida wrongful death attorney to highlight unique facts and turn them into novel arguments, which can lead to significantly enhanced damages. For example, the jury may also consider the relationships of the parties, the likelihood that any of the survivors would have eventually needed more, and the likelihood deceased person would have helped (here the jury can even consider witnesses or other evidence attesting to the strength of the relationship). They may consider the likelihood of promotions or greater income in the future, as well as all sorts of other factors like health, habits, and any other facts and circumstances demonstrating exactly and totally what has been lost, in a monetary sense.
How Would A Jury Calculate “Companionship, Protection, Instruction And Guidance,” When Figuring Wrongful Death Damages?
“Companionship, protection, instruction and guidance” are what we wrongful death attorneys call “intangible” wrongful death damages. That means that we cannot calculate them with any precision. There is no statute that defines what these damages should be. Instead, this is a question completely determined by individual jury members, so the composition of your jury, and the facts that you present at trial, can either persuade or not persuade them that you deserve a higher amount for this category of wrongful death damages. Wrongful death attorneys really cannot predict what any given jury might award for these types of incalculable damages, but they can plan an evidentiary strategy to most effectively tell your story.
Florida’s Wrongful Death Act allows the surviving spouse, minor children, and, sometimes, adult children to recover for these losses. Minor children are defined by statute as those under 25 years of age. (A surviving parent cannot receive these damages.) Sometimes a grief expert may be permitted (by the judge) and can be helpful in conveying the extent of your particular loss. The jury may also consider the quality of your relationship with the deceased when assessing loss of companionship and protection. So defense attorneys might attempt to show marital discord, while your attorney (if you are the surviving spouse) may need to counter with effective evidence demonstrating marital harmony.
Can Adult Children Recover Lost Parental Companionship And Guidance?
Adult children, which is anyone 25 years or older, may only recover lost parental companionship, instruction and guidance if the deceased had no surviving spouse. Also, adult children may not recover these types of damages in wrongful death cases based on medical negligence (lobbyist for doctors and “tort reform” are the reasons for that last very unfair exception).
One Biggie: Mental Pain And Suffering
Five types of survivors may recover what is probably the most significant category of intangible wrongful death damages, that is, mental pain and suffering. Those people are: the surviving spouse, minor children, adult children when there is no surviving spouse, each parent of a deceased minor child, and the parents of an adult child when there are no other survivors. Just like lost companionship and guidance, the dollar value that any given jury might award for mental pain and suffering is impossible to calculate or predict. There is no statutory formula to guide them. They just hear your story and decide on a number for themselves. Again, the jury may consider the strength or weakness of the relationship (for example: an estranged husband living with another woman at the time of his wife’s death might have difficulty convincing a jury that he has significant pain and suffering after the wrongful death of his wife). So historically there have always been dramatic variations in verdicts and settlements. The way you present your evidence, and the way your rebut (or manage to exclude) the defendant’s evidence, can have a huge impact on their decision (or impact the defendant when settling with you). But factors beyond your or your counsel’s control may also play a part, such as any individual jurors’ viewpoints. Again, a grief expert, any other witnesses to your grief, and your own testimony, can be helpful in convincing the jury about the extent and severity of your suffering.
What The Heck Are “Net Accumulations”?
This is another way of saying that the jury must decide how much money the decedent would have left in his estate. In making that determination, the jury first considers the probable future business or employment income that the decedent would likely have earned, considering his prior income (minus taxes he or she would have paid) and life expectancy. (Probable future income from investments continuing beyond death is not considered, but pension income is included.) Next the jury must subtract what the decedent would have spent on personal and support expenses during his life (such as money he would have spent on food, clothing, entertainment, and shelter). The jury must also consider the amount that the deceased person would have saved and left at his death as part of his estate. So the jury will consider both the decedent’s propensity to earn and his propensity to save when calculating “net accumulations.” Finally, future net accumulations are reduced to present value.
So the jury basically just hears evidence relating to the decedent’s prior work and earnings history and personal, work, spending and saving habits (often joined with testimony from economic experts) and then gives their best guess regarding what the decedent would have left from his earnings to his estate. Although the jury has a tremendous amount of discretion, still their award must be based on record evidence, not pure speculation. In other words, if the deceased never worked a day in his life, and never saved a penny, then the jury cannot find that he would have left probably any net accumulations. There must be evidence that he worked and earned an amount that supports the jury’s verdict.
There are additional conditions that must be met for an estate to recover net accumulations. For instance, the estate can recover net accumulations when the decedent is survived by a spouse or “lineal descendents” (essentially children or grandchildren) OR the parents may recover net accumulations for an adult deceased child in some but not all circumstances.
How Are Lost Earnings Different From Net Accumulations?
Lost earnings are simply the amount that the deceased person would have earned from the date of his or her injury to the date that they passed away. These types of damages are available in certain circumstances to the estate if the victim was injured but did not die immediately. Any amount for lost support to survivors must be deducted from this category of wrongful death damages.
Are Creditors Claims Deducted From Wrongful Death Damages?
The answer is yes and no. Wrongful death damages awarded to the decedent’s estate are subject to the claims of creditors. But wrongful death damages awarded to the decedent’s survivors are not.
Footnote: Medical Malpractice Wrongful Death Damages Have Slightly Different Rules In Some Circumstances
Generally speaking, there are greater limits and caps on who can recover what categories of damages (and the dollar amounts of those damages) in wrongful death cases based on medical malpractice (as opposed to all other types of wrongful death cases). The medical malpractice limitations in wrongful death cases are complicated and, as an aside, very unfair (and the result of powerful doctor’s lobbies fighting for “tort reform” in Florida’s legislature).
One Last Category of Wrongful Death Damages: Potential Punitive Damages
In rare cases, you may also be entitled to punitive damages. There is a very high standard for the court to even allow the jury to hear evidence regarding potential punitive damages. Punitive damages are damages that are not designed to compensate for your losses. Rather, their purpose is to punish the defendant. So, in those cases where they are possible, the court may allow evidence of the defendant’s net worth (because how can you punish unless you know how much any dollar amount would hurt any particular defendant?) For the court to allow this category of damages, the negligence that killed your loved one must have been of a “gross and flagrant” character, suggesting a reckless disregard of human life or safety, or a complete lack of care suggesting indifference to consequences, gross carelessness, gross recklessness, and that kind of thing. This is a difficult standard to employ but may increase potential damages in some unique cases.
In Florida, at least as of this writing, punitive damages are capped at three times the amount of compensatory damages awarded, or $500,000, whichever is greater, except under unusual circumstances. But, as stated, punitive damages are rarely appropriate.
Can’t The Jury Just Award Whatever Wrongful Death Damages They Want, To Whoever They Want?
Well, the jury has a lot of discretion, and can fit damages into categories and place whatever numbers they want on intangible damages (subject to complicated statutory caps for certain categories of damages (that is, “intangible damages”) in medical malpractice cases–although these particular statutory provisions are under constitutional challenge in the Florida court systems so could change). However, the judge has numerous procedural options for limiting or excluding evidence, reducing damages and even dismissing entire claims, so sometimes cases never even reach a jury. For example, if a judge decides that the only claimant is not a survivor (sometimes this is legally a very complex question), then he or she can dismiss the case before trial. This is one of hundreds of very complex ways that cases can be dismissed before ever reaching a jury. So generally the jury has a lot of latitude, but the judge can change things.
Probably The Single Most Important Practical Question Related To Wrongful Death Damages
One of the first questions related to wrongful death damages on any attorney’s mind is whether the potential defendant has any money or insurance coverage. The sad and unfair reality of what are always very tragic situations is that someone very well might have caused someone else’s death. Unfortunately, if the wrongdoer has no money, and no insurance, then there is just no way to recover any money in a lawsuit against them. On the other hand, sometimes there are less than obvious wrongdoing parties. For example, if an unknown criminal killed your loved one in a place that should have better security, then there might be a wrongful death claim worth evaluating.
You Need A Wrongful Death Lawyer To Evaluate Any Potential Claim
The rules truly are extremely complicated so you need to consult with a wrongful death attorney to have your situation carefully evaluated. I have not listed all exceptions or the details of all rules on this page (there would be far too many to describe them all in a page that non-lawyers would ever want to read).