Wrongful Death Damages in Florida: What the Jury May Award

No amount of money replaces someone you love. But Florida law does require a jury to put a value on what a death has taken from a family. The rules for doing that are in the 502 series of the Florida Standard Jury Instructions in Civil Cases.

What the claim is

A wrongful death claim exists when a person dies because of another's wrongful act, including negligence. In Florida, the case is brought by the decedent's personal representative. The personal representative sues for the estate and for the survivors.

What the jury is told

Instruction 502.1 tells the jury what its job is:

"If your verdict is for (defendant), you will not consider the matter of damages. But if the greater weight of the evidence supports (personal representative's) claim, you should determine and write on the verdict form, in dollars, the total amount of [loss] [injury] [or] [damage] which the greater weight of the evidence shows the estate of (decedent) and [his] [her] survivors sustained as a result of [his] [her] injury and death, including any damages that the estate and the survivors are reasonably certain to incur or experience in the future." Fla. Std. Jury Instr. (Civ.) 502.1(b).

The estate and the survivors get separate lines. Instruction 502.3:

"Any damages that you find were sustained by (decedent's) estate and by (name survivors) shall be separately stated in your verdict." Fla. Std. Jury Instr. (Civ.) 502.3.

The estate's damages (502.2)

The jury considers lost earnings, lost "net accumulations," and medical or funeral expenses. The instruction defines net accumulations:

"'Net accumulations' is the part of (decedent's) net income [from salary or business] after taxes, including pension benefits [but excluding income from investments continuing beyond death], which (decedent), after paying [his] [her] personal expenses and monies for the support of [his] [her] survivors, would have left as part of [his] [her] estate if [he] [she] had lived [his] [her] normal life expectancy." Fla. Std. Jury Instr. (Civ.) 502.2(b).

The survivors' damages (502.2)

For these losses the instruction says "there is no exact standard for fixing the compensation," and that any award "should be fair and just in the light of the evidence."

A surviving spouse:

"The [(wife's) (husband's)] loss of (decedent's) companionship and protection, and [her] [his] mental pain and suffering as a result of (decedent's) injury and death [from the date of injury]." Fla. Std. Jury Instr. (Civ.) 502.2(d).

A surviving child:

"The loss by (name all eligible children) of parental companionship, instruction and guidance, and [his] [her] [their] mental pain and suffering as a result of (decedent's) injury and death [from the date of the injury]." Fla. Std. Jury Instr. (Civ.) 502.2(e).

Under Florida's Wrongful Death Act, minor children can claim this loss, and so can adult children when there is no surviving spouse. Different rules apply in medical negligence cases.

Parents of a child who died:

"The mental pain and suffering of (parents) as a result of the injury and death of (child) [from the date of injury]." Fla. Std. Jury Instr. (Civ.) 502.2(f).

Parents of a minor child can claim this loss. Parents of an adult child generally can claim it only if there are no other survivors, and not in medical negligence cases.

Any survivor, support and services:

"The [survivor's] [survivors', (name them all)], loss, by reason of (decedent's) injury and death, of (decedent's) support and services." Fla. Std. Jury Instr. (Civ.) 502.2(g).

Medical and funeral expenses paid by a survivor are also listed (502.2(h)).

Who qualifies and what must be pleaded

Florida's Wrongful Death Act decides who counts as a "survivor" and who can recover which damages. It depends on the family: a spouse, children, parents, and certain other relatives who depended on the person for support or services. The personal representative is appointed through the probate court, and a lawyer can help with that step. The complaint must identify everyone who may benefit, including the estate, and state each person's relationship to the person who died. It generally pleads:

• the death and the wrongful act that caused it;
• the personal representative's appointment;
• each survivor and their relationship;
• the estate's losses and each survivor's losses.

The filing deadline for a wrongful death case is generally two years, with exceptions. Do not rely on that without checking your facts.

What you need to prove

Negligence (or other wrongful conduct), that it was a legal cause of the death, and the losses of each survivor and the estate. The standard is the greater weight of the evidence.

Common defense arguments

• Comparative fault of the decedent. Instruction 502.5 lets the jury assign percentages.
• Blame on someone outside the case.
• A pre-existing illness shortened life expectancy.
• The survivor was not truly dependent, or the relationship was distant.
• The decedent's earnings or support are overstated.
• No "survivor" under the statute. This can narrow who recovers.

What to do now

1. Do not sign releases or accept early insurance checks.
2. Ask the medical examiner and hospital for records.
3. Keep funeral bills and proof of who paid.
4. Gather the decedent's pay stubs, tax returns, and benefits.
5. Talk to a lawyer about who should serve as personal representative.
6. Do not post about the case on social media.

Talk to us

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This page is general information, not legal advice.