Understanding the compensation you may receive
Florida's wrongful death statutes provide a mechanism for survivors and the estate to recover a range of damages that can alleviate some of the financial burdens that accompany such a tragedy.
Picture this: Tom is traveling home from work along a notoriously dangerous stretch of I-75 in Fort Lauderdale. Suddenly, a semi-truck driver under the influence veers off course and crashes into Tom’s vehicle.
Back at home, Tom’s wife Sarah is helping her two children with their homework when she receives a chilling phone call delivering the heartbreaking news: Tom has been killed.
No amount of money can replace a loved one, but Florida’s Wrongful Death Act allows survivors to recover financial damages to help compensate for their loss.
The Florida Wrongful Death Act
A wrongful death claim is a civil action brought against a defendant who caused a person’s death through recklessness or negligence.
Florida’s Wrongful Death Act can be found in Florida Statutes Sections 768.16-768.26.
Under the Act, the decedent’s personal representative is permitted to file a wrongful death claim for the benefit of the decedent’s survivors and the estate.
Learn more about how to file a wrongful death claim in Florida.
Types of damages that can be recovered in a Florida wrongful death lawsuit
Damages in a wrongful death lawsuit aim to provide compensation for losses incurred as a result of a loved one’s untimely death. These damages fall broadly into two categories:
- Damages awarded to the decedent's survivors, and
- Damages awarded to the decedent's estate.
Damages awarded to the decedent’s survivors
Survivors, which include the decedent’s spouse, children, parents, and any blood relatives and adoptive brothers and sisters who are dependent on the decedent for support, may recover the following damages in a Florida wrongful death lawsuit:
| Loss of support and services | Loss of companionship and protection | Mental pain and suffering | Medical and funeral expenses |
|---|---|---|---|
| Each survivor can claim compensation for past and future support they would have received from the deceased. Factors taken into account when determining the amount of compensation include the nature of the relationship between the survivor and the deceased, as well as the life expectancies of both the survivor and the deceased. | The surviving spouse may recover for the loss of the decedent’s companionship and protection. Minor children, and all children if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance. | The surviving spouse, minor children (and all children if there is no surviving spouse), and each parent of a deceased minor child may receive compensation for the mental pain and suffering they experienced as a result of the death. | Medical or funeral expenses due to the decedent’s injury or death may be recovered by the survivor who has paid them. |
Damages recoverable by the estate
The decedent's estate can recover two types of damages in a Florida wrongful death lawsuit:
- Loss of earnings: The estate may recover the loss of net accumulations of the estate, which might reasonably have been expected but for the wrongful death.
- Medical and funeral expenses: The estate can recover any medical or funeral expenses that were charged against the estate or paid by or on behalf of the decedent.
Are there any caps on wrongful death damages in Florida?
The jury is usually responsible for determining the amount of damages to award in a wrongful death case; however, many states have laws that limit the amount of damages so that even if a jury awards a higher verdict, the verdict will be reduced to adhere to the law. These laws are known as damage caps.
Unlike many other states, Florida does NOT have cap damages in wrongful death cases.
Michelle McCall tragically died from severe blood loss after delivering her son at a United States Air Force clinic. A wrongful death lawsuit was filed against the United States under the Federal Tort Claims Act (FTCA), leading the federal district court to deem the United States liable.
The court awarded economic damages of $980,462 and noneconomic damages of $2 million. However, the court reduced the noneconomic damages to $1 million in accordance with Florida's statutory cap on such damages in medical malpractice claims.
Upon review, the Florida Supreme Court held that the cap on wrongful death noneconomic damages violated the Equal Protection Clause of the Florida Constitution.
The role of comparative fault in wrongful death damages
Florida is a comparative fault state, which means that if a plaintiff is partially at fault for an accident in which they suffer harm, the plaintiff’s recovery of damages will be reduced by their percentage of fault.
How does this apply to wrongful death cases?
Florida Statutes Section 768.20 states that:
“A defense that would bar or reduce a survivor’s recovery if she or he were the plaintiff may be asserted against the survivor, but shall not affect the recovery of any other survivor.”
In other words, the Wrongful Death Act allows a defendant to use the comparative negligence of a survivor to reduce that survivor’s recovery. For an example of how this plays out, let’s take a look at the case of Hess v. Hess, 758 So. 2d 1203 (Fla. 4th DCA 2000).
Hess v. Hess, 758 So. 2d 1203 (Fla. 4th DCA 2000)
Ronald Hess, the father and personal representative of Tiffany Hess' estate, who died in a car accident caused by her mother and Ronald's ex-wife, Nancy, settled a wrongful death claim for $100,000 against the Capps, whose vehicle was involved in the accident, and their insurer.
Ronald petitioned the probate court to authorize the settlement and later requested that the entire settlement amount be allocated to him, arguing that Nancy was solely responsible for the accident. Nancy, however, sought an equal distribution between herself and Ronald.
The court ultimately held that the comparative negligence of a survivor could reduce that survivor's recovery. As such, the court allocated the entire settlement amount to Ronald.
While this guide provides an overview of the benefits available in Florida wrongful death cases, it’s important to keep in mind that each case is unique and may involve considerations not discussed here. Therefore, consulting an experienced personal injury attorney is the best course of action to ensure you receive the compensation you deserve.
See our guide Choosing a personal injury attorney.