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Though heart disease and cancer top the list of leading causes of death, unintentional accidents also claim tens of thousands of lives each year. The tragedy is that many of these accidents were preventable if not for the negligence of others. Though losing a loved one from a preventable death is a tragedy and no amount of compensation can bring back the joy of having the loved one by your side, a wrongful death claim may be an option you may seek.
Florida’s Wrongful Death Statute
According to Florida’s wrongful death statute, an individual can file a lawsuit in a civil court on behalf of another individual who died due to another’s wrongful act, negligence, default, or breach of contract or warranty.
The individual who files the wrongful death lawsuit must be a personal representative of the deceased. In some cases, the personal representative may be the individual named in the deceased’s will or estate plan. However, if there is no will or estate plan, the court can assign someone to be the personal representative.
Please note that the personal representative does not file a wrongful death suit solely for the deceased’s estate. He or she is filing the lawsuit on behalf of the deceased’s surviving family members as well. Family members include the deceased’s children, spouse, parents, and any blood relative or adoptive siblings who were partially or wholly dependent on the decedent.
Generally speaking, only the deceased’s immediate family members will be the ones who benefit from a successful wrongful death lawsuit. Even if you were the brother of the decedent, if you were not receiving financial assistance or dependent in any manner, you may not receive any compensation from a successful wrongful death claim.
For children who were born to unmarried parents, they may still receive compensation from a wrongful death claim in certain conditions. If the mother dies from a wrongful death, the child can automatically receive benefits upon a successful claim. However, if the child’s father dies, then the child may only recover compensation if the father had recognized the child as his child and was also supporting the child financially.
Common Underlying Causes of Wrongful Death Claims
Motor Vehicle Accidents
Traffic accidents are not uncommon in Miami. Often, these accidents are caused by negligent drivers who are not paying attention to the road. Texting and driving can be just as dangerous as drunk driving. Unfortunately, not paying attention to the road can claim the life of not just the inattentive driver, but also others in the proximity as well. Common motor vehicle accidents include:
Doctors are not infallible. They can make mistakes as well. However, mistakes in diagnosis or in the operating room can be fatal. A medical malpractice death can be an underlying basis for a wrongful death lawsuit.
Though numerous regulatory agencies exist in the United States, they are not always successful in vetting every single product to ensure maximum safety and quality. For instance, there have been phones known to explode inside the pockets of their users.
Landowners have a duty to keep their premises safe for visitors who are present for business or leisure. However, there are many landowners who fail to maintain their property, which can lead to fatal accidents. For instance, people have been known to trip over the stairs in a building because of inadequate lighting and fall to their death.
Read More: Miami Premises Liability Lawyers
Though this may generally apply only to those individuals who work in dangerous workplaces, a wrongful death claim can have as its basis a workplace injury. For instance, if a construction worker was killed because of another employee’s negligence, the family of the deceased may have a wrongful death claim against the employee who caused the death.
Winning a Wrongful Death Claim
A wrongful death claim is like any other personal injury claim. It requires that the claimant show that the death was caused by another’s negligence. To show that a party was negligent in a wrongful death claim, you must show that the party owed a legal duty to the decedent, that the duty was breached, that the breach caused the death, and that the death caused some sort of injury. The injury can be financial. It does not necessarily have to be one that is physical.
Some Factors Taken into Consideration for Awards Given in Wrongful Death Claims
Numerous factors may determine the compensation given to the claimants in a wrongful death lawsuit. For instance, if the decedent in question in a wrongful death lawsuit is a minor, the court or jury will consider the potential earning capacity of the minor and other tangible and intangible assets of the minor decedent. Of course, this gets much more difficult if the minor was very young when he or she passed away. For adult decedents, calculating the value of their lives is easier as there are income records and investment records that can provide a more objective value. Though it may seem harsh to calculate a person’s life on the assets they had while living, courts and juries do not solely use an impersonal metric to allocate compensation. They also compensate the deceased’s beneficiaries for the loss of companionship and other subjective losses that resulted from the wrongful death.
What Surviving Family Members May Be Compensated For
Below is a list of the losses that family members may be compensated for:
- The financial and other support the deceased individual provided to the surviving family members
- The loss of companionship provided by the deceased individual
- The mental and emotional pain that resulted from the loss of the deceased individual
- The medical and funeral expenses that the surviving family members contributed to
- The lost wages, benefits, and other earnings that the deceased individual would have reasonably made if he or she had continued to live
- The lost future asset accumulations had the deceased individual continued to live
Statute of Limitations
After the wrongful death of an individual, representatives may file a lawsuit on behalf of the deceased individual. However, they generally have a time limit to do so. In Florida, they would have two years after the date of death to file a claim. However, the time limit to do so can be extended in certain conditions. For instance, if the wrongful death claim will be filed on behalf of a minor, the time limit does not begin until the minor turns eighteen. Another instance of the statute of limitations being extended is if there was fraud involved. There have been cases where the wrongful death was covered up so that the family members or personal representatives did not know that the death even occurred. In those cases, the statute of limitations can also be extended.
Should I Settle a Wrongful Death Lawsuit?
Though you may want justice after the death of your loved one by taking your claim to trial, there are reasons why you may not wish to do so. Consider the following before you decide to take your wrongful death claim to trial:
Is the Key Witness Still Available?
Oftentimes, whether your case can stand scrutiny at court is whether your key witness will be available to testify favorably on your behalf. If, however, the key witness who witnessed the death of your loved one is missing or dead, then you may not have as strong of a case as you did before when the witness was available. Of course, a strong case should not depend on solely one witness but losing a key witness increases the chance that your case may not succeed in court.
Do You Wish for a Quicker Resolution?
Some family members wish to have more time to grieve than focus on lawsuits. Understand that if you decide to take your case to trial, you may have to wait for years for the lawsuit to resolve. Once the lawsuit is filed, it may take weeks for the defendant to respond. Once the defendant responds and discovery is initiated, it may take weeks or months for the discovery and depositions to be completed. And even if the above go smoothly, there will be other hearings that can delay the trial further.
Do You Prefer Certainty over Uncertainty?
There is much uncertainty if you decide to take your case to trial. Remember that settlement is an agreement. There will be a negotiation, and the settlement will be what you receive in the end. If you decide to take a case to trial, however, you will have less control over what occurs. There have been many instances of a surefire claim that flounders due to a witness saying the wrong thing or due to a lawyer’s objection to improper evidence being denied.
CONTACT A MIAMI WRONGFUL DEATH INJURY LAWYER
The experienced attorneys at Zinda Law Group may be able to help you with your wrongful death claim. Our experienced Miami lawyers have supported many clients through the difficult legal process after losing a loved one. After an accident, you shouldn’t have to worry about affording legal representation, which is why we work on a contingency fee basis. You don’t owe us anything unless we win your case.