The death of a loved one is a tragic and devastating event for the entire family, and it is even worse if that death could have been prevented but for the negligent actions of another party.
In Florida, the deceased person’s family members may choose to recover damages for the pain, suffering, and financial burdens associated with their loved one’s death if that death could have been prevented. Typically, there are two types of claims that can be filed after the loss of a loved one – wrongful death and survival actions.
Although wrongful death and survival actions are similar and are sometimes confused, there are several key differences. The appropriate claim depends on the circumstances of the death and the types of damages being sought.
Below, we cover the basics of wrongful death and survival action claims in Florida, and the differences between the two.
Florida Wrongful Death Claims
According to Florida Statutes section 768.19, when the decedent’s death is caused by the wrongful act, negligence, default, or breach of contract by another party, the decedent’s estate can bring a civil lawsuit in Florida’s courts, seeking a legal remedy for the death and resulting losses suffered by family members.
Who Can File Wrongful Death Claims
A wrongful death claim can be filed by a personal representative of the decedent’s estate on behalf of all surviving family members. The personal representative may be named in the decedent’s will or appointed by the courts. In a wrongful death claim, all survivors who have an interest in the case are listed.
Family members who can recover damages in a wrongful death case include:
- The decedent’s spouse, children, and parents
- Any blood relative or adoptive sibling who was dependent on the decedent for financial support.
Damages Sought in Wrongful Death Claims
Under Florida law, surviving family members can recover compensation for damages to the family that result from the decedent’s death.
Damages for wrongful death claims include:
- Lost income that the decedent would have provided to financially dependent family members.
- Loss of companionship, guidance, and protection from the decedent.
- Mental and emotional damages stemming from the loss of a child.
- Medical or funeral expenses surviving family members have incurred.
When awarding damages in a wrongful death claim, the jury will consider elements such as the relationship of the decedent with the survivors, the value of the decedent’s probable income until retirement age, and the value of other services the decedent would have provided to survivors.
Florida Survival Action Claims
In some cases, it may be appropriate for the family to file a survival action claim after the death of an injured party. A survival action claim is essentially a continuation of an already existing legal claim that was already being sought prior to the decedent’s death.
A survival action claim seeks to recover damages for the pain and suffering the decedent suffered from his or her injuries prior to death, but it is payable to the decedent’s estate.
Who Can File Survival Action Claims
Similar to a wrongful death claim, a survival action claim may be filed by a personal representative of the decedent’s estate.
However, compensation from a survival action claim does not go to specific family members. Rather, it is instead payable to the decedent’s estate, since it is meant as compensation for damages incurred by the decedent, rather than by family members.
Damages Sought in Survival Action Claims
In a survival action claim, the estate can recover damages that the decedent would have recovered for injuries resulting from an accident had he or she lived.
Damages sought in survival action claims may include:
- Costs of medical care for injuries resulting from the accident.
- Lost wages incurred from the time of injury to the time of the decedent’s death.
- Lost earning capacity, if the decedent was required to take a lower-paying job because of his/her injuries.
- Pain and suffering by the decedent prior to his/her death.
When awarding damages in a survival action claim, the jury will consider factors such as the severity of pain suffered by the decedent, the duration of suffering, and the apprehension of approaching death.
Essentially, the primary difference between wrongful death and survival action claims is that damages are incurred by surviving family members in a wrongful death claim, while in a survival action claim, damages are incurred by the decedent prior to death.
This means that in a wrongful death claim, surviving family members seek compensation for damages they suffered due to the loss of their loved one, while in a survival action claim, the decedent’s estate seeks damages that would be owed to the decedent had he/she not died prior to being awarded damages.
Typically, in Florida, surviving family members may only file one type of claim. A personal injury attorney can help guide which claim is most appropriate under the circumstances surrounding the injury and death.
About the Author:
John K. Lawlor, a South Florida personal injury attorney who focuses his practice on complex personal injury, wrongful death, and professional malpractice, founded the law firm of Lawlor, White & Murphey in 1998. Since 1995, Mr. Lawlor’s trial advocacy and litigation skills, as well as his wide-ranging legal expertise, have provided plaintiffs and their families with a distinct advantage when seeking financial compensation and justice for injuries caused by the negligence of others. Mr. Lawlor is an EAGLE member of the Florida Bar Association and an active member of the American Association for Justice, the Broward County Justice Association, the American Civil Liberties Union (ACLU), and several professional associations.