Tampa Wrongful Death Lawyer
Loved one killed by another's carelessness? We'll hold them accountable.
When a negligent accident causes someone’s death, the victim’s family may file a wrongful death claim. There are several types of accidents that may give rise to a wrongful death case:
- car accidents
- motorcycle accidents
- trucking accidents
- boating accidents
- DUI-Related accidents
- drowning accidents
- spinal cord injuries
Civil claim vs. criminal homicide case
A wrongful death claim may arise out of an event that also triggers a criminal homicide case. Nevertheless, the civil court case takes place in a completely separate court system from the criminal case. Moreover, a family may file a civil court claim without regard to whether there is also a corresponding criminal case. In a wrongful death case, the plaintiff is usually the injured party’s personal representative filing on behalf of the victim’s family. The plaintiff must prove his or her case by a “preponderance of the evidence,” which is a lower standard than in criminal cases. In a criminal homicide case, the state is the plaintiff. To convict a criminal court defendant, the state is required to prove its case “beyond a reasonable doubt.”
Victims’ families have recourse through the civil court process as a means of receiving compensation for the financial and emotional damages they incur as a result of their family member’s death. Therefore, in a wrongful death claim, the question is whether the defendant will be ordered to pay compensation. Civil courts do not handle sentencing and conviction.
Damages in Tampa wrongful death cases
When a plaintiff wins a wrongful death case, the court orders the defendant to pay compensation for the plaintiff’s claimed losses. Damages are either paid directly to the victim’s surviving family members, or they are paid to the victim’s estate. Damages paid to the family typically include:
- loss of support and services
- loss of companionship and protection
- mental pain and suffering
- loss of companionship, instruction, and guidance
- medical and funeral expenses
- loss of parental guidance, instruction, and companionship
The accident victim’s estate may recover damages based on the individual’s employment and wages. Examples of damages the victim’s estate may recover include:
- lost earnings and benefits from the date of the injury to the individual’s death
- the value of future earnings and benefits the injured party could have been expected to save as part of his or her estate
- medical and funeral expenses paid directly by the injured party’s estate
Filing a wrongful death case in Tampa
Florida’s wrongful death laws differ from the laws in most states in that the accident victim’s family cannot directly file a claim. State law requires a personal representative to file the wrongful death claim on behalf of the decedent. When the personal representative or “executor” files the wrongful death claim, he or she is bringing the legal action on behalf of the accident victim’s estate and his or her surviving family members. When filing the claim, the personal representative must list all potential beneficiaries.
Who can be a personal representative?
If the accident victim has a will or estate plan, his or her personal representative will be named in the document. In cases in which the decedent does not have an estate plan, the court will appoint a personal representative. If the accident victim was married at the time of the accident, the court will typically appoint his or her surviving spouse to be the personal representative if the individual did not have an estate plan at the time of the death. If the accident victim does not have a surviving spouse, or if the surviving spouse does not agree to be the personal representative, the court will appoint an individual or institution selected by a majority of the decedent’s heirs.
Who may recover wrongful death damages
Under Florida law, only certain family members may receive compensation in a wrongful death case. People who are able to recover compensation may include:
- the victim’s spouse
- dependent children
- the victim’s parents
- other financial dependents
Surviving family members in Florida wrongful death cases
Determining who may receive compensation in a wrongful death case is not as straightforward as people often think. Each family member may recover damages only under very specific circumstances. The type of compensation a family member may receive depends on the nature of his or her relationship with the victim.
Compensation for children
If a wrongful death accident victim has surviving children, their ability to recover damages largely depends on the children’s ages. Biological and adopted children who are 25 or older are considered adult children. Adult child dependents may recover damages for loss of support from their deceased parent. If an adult child pays funeral expenses, he or she may receive compensation for funeral costs. In cases in which the accident victim does not have a surviving spouse, adult children may receive compensation for:
- loss of parental companionship
- loss of instruction or guidance
- mental pain and suffering
Exceptions apply if a wrongful death claim arises from medical malpractice. In medical malpractice death cases, the victim’s children are not awarded compensation for mental pain and suffering, loss of parental companionship, and instruction and guidance.
Like adult children, minor children may recover damages for loss of parental companionship, instruction and guidance, and mental pain and suffering. Juries may consider the extent to which the parent was involved in each child’s life when awarding damages. For example, a jury may award more compensation to a child if the attorney for the family presents evidence that the parent was involved in the child’s day-to-day life.
Loss of parental companionship refers to the absence of love, support, and affection a child experiences as a result of a parent’s death. Loss of instruction and guidance refers to the loss of advice, structure, discipline, and leadership that results from a parent’s death. Examples of ways parents provide companionship, instruction, and guidance include:
- participation in child’s sports teams and hobbies
- helping with homework
- being involved in school associations like PTA
- enforcing household rules
- assigning chores and curfews
- providing affection and comfort
- participating in family activities
There are several steps an attorney may take to establish loss of parental companionship, guidance, and support. The lawyer may call a psychologist to testify regarding the child’s grief or submit evidence of the decedent’s participation in school activities. Evidence of custodial arrangements, visitation, family vacations may establish the parent’s involvement in supervising the child and participating in family activities.
Recovery for surviving spouses in Tampa wrongful death cases
A surviving spouse may recover compensation for loss of support and services in addition to medical expenses. If the spouse pays related funeral costs, he or she may also receive compensation for funeral expenses. The surviving spouse may also receive compensation for loss of companionship and protection in addition to compensation for mental pain and suffering.
For a surviving spouse, loss of support and services means the loss of general support and companionship the survivor received as a result of having had the accident victim in the home. Examples are:
- cleaning the home
- doing laundry
- caring for pets
- providing emotional support and comfort
- engaging in sexual relations
- spending quality time together
There is no hard and fast rule courts follow to determine how much compensation a surviving family member may receive for mental pain and suffering. The plaintiff’s attorney may submit witness testimony from friends and other family members to prove the spouse and the victim had a strong relationship. The attorney may have a psychologist testify to establish the surviving spouse’s level of grief. On the contrary, a surviving spouse may have difficulty establishing a claim for mental pain and suffering if he or she lived apart from the accident victim or if they were having marital difficulty. Similar considerations apply in determining whether the surviving spouse will receive compensation for loss of companionship and protection.
Other blood relatives
Other blood relatives and adoptive siblings may receive compensation if they are at least partially dependent on the accident victim for support or services. Examples of other biological and adoptive relatives who may receive compensation are:
- adopted children
- brothers or sisters
- other blood relatives
Comparative negligence in Florida wrongful death cases
Adding another complex element to Tampa wrongful death cases, Florida follows the pure comparative negligence rule in personal injury cases. Under the general principle of comparative negligence, defendants may present evidence to prove a plaintiff was partially at fault for his or her injury. The court assigns a percentage of fault to each party. Under the pure negligence theory, a plaintiff who is partially at fault may still receive compensation. For example, if a plaintiff is found to have been 10 percent at fault for his or her injury, the court will reduce his or her amount of recovery by approximately 10 percent. In Florida, a plaintiff may still receive compensation even if the plaintiff is more than 50 percent at fault.
In Florida wrongful death cases, the comparative fault rule doesn’t end with the accident victim. As illustrated in Hess v. Hess, a surviving family member’s compensation may be reduced if he or she contributed to the accident. In Hess, a minor child was killed in a car accident, and Florida’s Fourth District Court of Appeals held that the child’s mother could be barred from receiving any of the child’s insurance payout because the mother, who was driving the vehicle at the time of the accident, was at fault for the child’s death.
Statute of limitations
Florida imposes a two-year statute of limitations on wrongful death cases. Therefore, surviving relatives must move quickly in filing a wrongful death claim for the loss of their loved one. Two years from the date of the accident victim’s death may seem like a long time. However, it may take additional time for a lawyer to determine the facts of the case, gather evidence, and devise the most appropriate legal strategy. Negotiating with insurance companies may also require time. Therefore, it is always in the victim’s family’s best interest to contact a Tampa wrongful death lawyer immediately after the death takes place. Contacting the lawyer earlier will allow the attorney more time to investigate and may afford the plaintiff greater flexibility and more legal options. Nevertheless, the plaintiff’s attorney will work diligently to file the victim’s family’s claim as long as there is still time left.
What to do after a wrongful death accident
In the event of a wrongful death accident, the victim’s family should immediately contact a Tampa wrongful death lawyer. Contacting a lawyer prior to communicating with the insurance company may save time and frustration. Personal injury attorneys have the training and expertise to negotiate directly with the insurance company’s corporate attorneys. Allowing the attorney to handle the legal discussions grants the surviving family members the time and space they need to heal while also giving them peace of mind in knowing the legal matters are being handled by professionals.
Our Tampa wrongful death attorneys are available to provide a free case evaluation. We approach each potential case with compassion and professionalism. Your attorney will keep the details of your case confidential. During the evaluation, a member of our staff will gather the facts of your case. Our personal injury attorney will follow up with you to talk through your potential legal options. The attorney will answer your questions and help you make informed decisions in taking the next steps.