Wrongful Death? (Scroll down for Personal Injury Information)

A “wrongful death” occurs when a person is killed due to the negligence or misconduct of another individual, company or entity. An action for wrongful death belongs to the decedent’s immediate family members (often called “distributees”). The most common distributees are surviving spouses and children, and sometimes parents. A suit for wrongful death may only be brought by the personal representative of the decedent’s estate. Every state has a civil “wrongful death statute,” or set of statutes, which establish the procedures for bringing wrongful death actions. Actions for personal injury, conscious pain and suffering, or expenses incurred prior to the decedent’s death are also brought by the personal representative. The damage awards from these actions belong to the estate and may pass to different parties as directed by the decedent’s will.

Elements of a Wrongful Death Lawsuit

In order to bring a successful wrongful death cause of action, the following elements must be present:

• The death of a human being;
• Caused by another’s negligence, or with intent to cause harm;
• The survival of family members who are suffering monetary injury as a result of the death, and;
• The appointment of a personal representative for the decedent’s estate.

A wrongful death claim may arise out of a number of circumstances, such as in the following situations:

• Medical malpractice that results in decedent’s death;
• Automobile or airplane accident;
• Occupational exposure to hazardous conditions or substances;
• Criminal behavior;
• Death during a supervised activity.
• Damages in a Wrongful Death Lawsuit

Pecuniary, or financial, injury is the main measure of damages in a wrongful death action. Courts have interpreted “pecuniary injuries” as including the loss of support, services, lost prospect of inheritance, and medical and funeral expenses. Most laws provide that the damages awarded for a wrongful death shall be fair and just compensation for the pecuniary injuries that resulted from the decedent’s death. If the distributees paid or are responsible for the decedent’s funeral or medical care, they may also recover those expenses. Finally, a damage award will include interest from the date of the decedent’s death.

Determining Pecuniary Loss

When determining pecuniary loss, it is relevant to consider the age, character and condition of the decedent, his/her earning capacity, life expectancy, health and intelligence, as well as the circumstances of the distributees. This determination may seem straightforward, but it often becomes a complicated inquiry, keeping in mind that the measure of damages is actual pecuniary loss. Usually, the main consideration in awarding damages is the decedent’s circumstances at the time of death. For example, when an adult wage earner with dependents dies, the major parts of the recovery are: 1) loss of income, and 2) loss of parental guidance. The jury may consider the decedent’s earnings at the time of death, the last known earnings if unemployed, and potential future earnings.

Adjustments in the Jury’s Award

In a wrongful death action, the jury determines the size of the damages award after hearing the evidence. The jury’s determination is not the final word, however, and the size of the award may be adjusted upward or downward by the court for a variety of reasons. For example, if the decedent routinely squandered his income, this might reduce the family’s recovery. Similarly, the courts will reduce a jury’s award if the decedent had poor earnings, even though he was young, had great potential, and supported several children. At the same time, a jury may award lost earnings despite the decedent’s having been unemployed, if he had worked in the past and if the plaintiff presented evidence of the decedent’s average earnings while employed. If the plaintiff fails to present such evidence of the decedent’s average earnings, the court may set aside the jury’s damage award and order a new trial.

Using Expert Testimony to Determine Pecuniary Loss

Plaintiffs are able to present expert testimony of economists to establish the value of the decedent to his family. Until recently, this testimony was not admissible when a housewife died, but that rule has changed. When the decedent is a housewife who was not employed outside the home, the financial impact on the survivors will not involve a loss of income, but increased expenditures to continue the services she was providing or would have provided if she had lived. Because jurors may not be knowledgeable regarding the monetary value of a housewife’s services, experts may aid the jury in this evaluation.

Punitive Damages

Punitive damages are awarded in cases of serious or malicious wrongdoing to punish the wrongdoer, or deter others from behaving similarly. In most states, a plaintiff may not recover punitive damages in a wrongful death action. There are some states, however, that have specific statutes that permit the recovery of punitive damages. In states that do not explicitly allow or disallow punitive damages in wrongful death actions, courts have held punitive damages permissible. An attorney will be able to advise you as to whether your state allows punitive damages.

Attorney Aaron O’Brien has helped families who have lost loved ones or seen them injured after the negligence of car and truck drivers.

He has handled wrongful death and Personal Injury cases involving car and truck drivers injuring or causing the death of bicyclists and motorcyclists.

As an example, while litigating a case involving a car vs. biker crash that caused the tragic death of the biker, Attorney Aaron O’Brien wrote a warning to the insurance company for the driver. Mr. O’Brien asserted boldly that although it may not have been done yet in Florida, he intended to seek and collect punitive damages from the driver, whom O’Brien alleged was texting and driving at or near the time of the crash.

In the past, an insurance company would bitterly scoff at such a suggestion. But not anymore! Now, a Twentieth Judicial Circuit court judge right here in Southwest Florida ruled that punitive damages can be sought in a case involving the allegation of texting and driving resulting in the injury and death of a cyclist.

If you or a loved one has been injured as a result of someone else’s failure to use reasonable care, contact us today to get our help.

Florida Personal Injury?

Aaron O’Brien represents people who have been injured because of the negligence or wrongful conduct of another person, business, or entity.

Were You Injured Because of Someone Else’s Negligence?

Accidents happen.

But sometimes what gets called an “accident” happened because someone simply failed to use reasonable care.

A driver was looking at a cell phone instead of the road. A business knew about a dangerous condition and failed to correct it. A motorist failed to see a bicyclist or motorcyclist who had every right to be there. A truck driver was speeding, distracted, or following too closely.

When another person’s negligence causes an injury, Florida law may require the responsible person or business—and often its insurance company—to compensate the injured person for the damages caused.

The Insurance Company Is Already Investigating

After an accident, you may receive a telephone call from an insurance adjuster who sounds friendly and simply wants to “get your side of the story.”

Remember who the adjuster works for.

The insurance company may already be investigating the accident, interviewing witnesses, photographing vehicles or property, reviewing your statements, examining your prior medical history, and evaluating ways to minimize what it ultimately has to pay.

You should be equally careful about protecting your interests.

That does not mean every accident requires a lawsuit. It does mean that before giving recorded statements, signing broad authorizations, accepting a settlement, or assuming that an insurance company will “do the right thing,” you should understand your rights.

Evidence Matters

A personal injury case is not simply about proving that you were hurt.

You must also be able to establish who was legally responsible for causing the injury and prove the damages that resulted.

Photographs, surveillance video, vehicle data, cell-phone records, text messages, witness statements, medical records, accident reports, and other evidence can become extremely important.

And evidence disappears.

Vehicles are repaired or destroyed. Surveillance recordings are overwritten. Electronic data is deleted. Accident scenes change. Witnesses become difficult to locate.

The sooner important evidence is identified and preserved, the better.

What Damages Can Be Recovered?

The damages available in a Florida personal injury case depend upon the nature and severity of the injuries and the circumstances surrounding the accident.

Depending upon the case, damages may include medical expenses, future medical care, lost wages, loss of future earning capacity, pain and suffering, disability, physical impairment, disfigurement, and loss of enjoyment of life.

Serious injuries can affect much more than medical bills.

An injury may prevent you from working, caring for your family, participating in activities you once enjoyed, or simply living your everyday life without pain. Those consequences should be considered when evaluating the actual value of a personal injury claim.

Car, Truck, Motorcycle and Bicycle Accidents

Aaron O’Brien has represented people injured by negligent car and truck drivers, including cases involving serious injuries to bicyclists and motorcyclists.

These cases are not always as simple as determining who received the traffic citation.

A thorough investigation may require examining the physical evidence, witness testimony, vehicle damage, electronic data, cell-phone use, surveillance video, and the conduct of everyone involved.

In particularly serious cases, conduct such as texting while driving, intoxication, excessive speed, or other reckless behavior may raise issues beyond ordinary negligence, including whether punitive damages should be pursued.

What if You Were Partially at Fault?

Do not automatically assume that you have no case simply because you may have contributed to the accident.

Florida law permits fault to be allocated among the people responsible for an accident. The effect that your own conduct may have upon your ability to recover depends upon the particular facts and Florida’s comparative-fault laws.

Insurance companies understand these rules very well and may attempt to place as much blame as possible upon you.

That is another reason the evidence matters.

Serious and Fatal Injuries

When negligence results in catastrophic injury, the long-term consequences need to be considered from the beginning.

Future medical treatment, diminished earning capacity, permanent limitations, and the assistance an injured person may require for the remainder of his or her life can dramatically affect the value of a claim.

When negligence results in death, Florida law provides a separate remedy under the Florida Wrongful Death Act for the estate and qualifying survivors.

There Are Deadlines

Florida law imposes deadlines for bringing personal injury claims.

Different deadlines and additional requirements may apply depending upon the type of case and the person or entity responsible. Claims against governmental entities and claims involving medical negligence, for example, can involve additional procedures and notice requirements.

Do not wait until the deadline approaches to begin investigating your case. Important evidence may disappear long before the statute of limitations expires.

Aaron O’Brien can investigate how the injury occurred, identify responsible parties, preserve important evidence, determine available insurance coverage, evaluate your damages, negotiate with insurance companies, and, when necessary, pursue your claim in court.

If you have been seriously injured because of someone else’s negligence or wrongful conduct,  contact us today to discuss what happened and your rights under Florida law.