In South Florida, are Wrongful Death and Survival Action Cases Different?
Death is a tragic experience. According to the law of Florida, no cause of action dies with a person. In South Florida, injury and death cases may require one to either file a wrongful death claim or a survival action case when negligence results in the death of a loved one.
Knowing which claim is appropriate requires expert analysis of an experienced South Florida attorney. A plaintiff may plead both when the cause of death is uncertain and select which claim is applicable at the time of trial. There are several key distinctions between the two claims.
Wrongful Death Claim
You can define wrongful death as death caused by another person, mainly out of negligence. For example, medical malpractice and car accidents, among others, are considered wrongful deaths.
The relatives of the victim of a wrongful death act can opt to file a claim against the accused. These claims are geared towards getting compensation for the damages caused.
The Florida Wrongful Death Act sets aside procedural requirements for filing a wrongful death claim and the right channels for a cause of action.
Types of Wrongful Death Claims
When it comes to wrongful death, there are many types of wrongful death cases. Such include:
- Truck Accidents – Maybe as a result of driving an oversized truck, drunk driving, fatigue, aggressive driving, loss of control.
- Medical Malpractice – Misdiagnosis, failure to diagnose, error during surgery.
- Occupational Accidents – Dangerous working conditions, overworking.
- Defective Products – Defective products, toxic food, untested products.
- Car Accidents – Over speeding, reckless driving, ignoring traffic rules, driving under the influence.
- Aviation Accidents – Pilot errors, mechanical issues.
- Pedestrian Accidents – Caused by drunk drivers, over speeding, neglecting traffic rules.
Why do you need an attorney?
Everyone has the right to legal representation for a wrongful death claim because such claims are complicated and involving. A South Florida wrongful death attorney may guide the decedent’s representative on the course of action.
Firstly, the representative needs to establish that it was a wrongful death. Moreover, all the negligence components must be sufficient and eligible for compensation.
Factors such as who can recover, what the damages are, and when they can recover, conflicting laws in common-law marriages, children, and financial dependents need to be explained by an experienced attorney.
Who Can Sue?
The law of Florida requires the personal representative of the decedent to file the claim. All potential beneficiaries should be identified in the complaint, and the relationship to the decedent be alleged and proven. The personal representative may be named in the will of the decedent or appointed by the court.
The claim might be filed on behalf of the decedent, family members, and any survivor who has an interest in the case. Family members legally required are:
- The spouse of the decedent.
- Children – this includes a child born to unmarried parents, children under 25 are entitled to greater damages than adult children.
- Blood relative.
- An adopted sibling who either partly or wholly depended on the decedent.
The remedies sought on a wrongful death claim are called damages. The jury considers the relationship of the person suing to the decedent and the value of the decedent’s probable net income. It is a civil claim and is brought by the decedent’s representative, who has the burden of proof beyond a reasonable doubt.
Section 768.21 of The Florida Statutes provides for the rules that are followed by the court when awarding damages. Damages include the value of support and services provided by the decedent, loss of companionship, protection and guidance, mental and emotional suffering, medical and funeral expenses, lost wages, and benefits.
Statute of limitations
The state of Florida has certain time limitations of filing a South Florida Wrongful Death Case. According to section 95.11 (4), you must file a wrongful death claim within two years from when the incident occurred.
A claim cannot be commenced four years after the incident except when it’s on behalf of a minor. They can extend the deadline under specific circumstances discussed in the Act.
Justice delayed is justice denied. Therefore, it is fundamental for the personal representative to seek a South Florida Wrongful Death Attorney with vast experience on specific cases that may be affected by the statute of limitations. A thorough understanding of the statute of limitations is beneficial.
You could lose your right to a fair hearing and your right to bring your claim before a court of law.
Survival Actions Case
When a personal injury to the decedent results in death, then the personal injury claim shall be nullified. The personal representative could bring in a survival action claim when the death was caused by a wrongful act, negligence, breach of contract, and recovery even if death did not occur from it.
According to section 46.021 of the Florida Statutes, a survival action claim is the continuation of an existing legal claim sought before the decedent’s death filed by the estate. The death may be unrelated to the injury; however, a survival action case recovers the damages for the pain and suffering, loss of enjoyment caused by the injury.
Who Can Sue?
The personal representative, who is the administrator of the decedent’s estate, may bring a survival action case to court. The decedent may have died before filing a claim or may have died before getting compensation. The state gives the decedent’s estate the right to sue on behalf of the dead.
A survival action claim can arise where the decedent filed a personal injury case but died before getting justice. The personal representative, therefore, carries on with the case on behalf of the decedent. The same can also apply where the decedent did not get a chance of filing their claim.
In a survival action case, the court compensates the decedent as living and pays the damages to the decedent’s estate.
The damages here might include bills from surgeries, medications, therapy, other utilities resulting from the injury, lost job, or wages. The damages are paid to the decedent’s estate. The courts look at the severity of the pain, suffering, and money used to sort the situation.
Comparison Between a Wrongful Death Claim and a Survival Action Case
The primary difference between a wrongful death claim and a survival action case is on the damages. The damages of a wrongful death claim are paid to the family members, whereas the damages of a survival action claim are given to the decedent’s estate.
In a wrongful death claim, the family members seek compensation for the loss, pain, and suffering plus incurred expenses they suffered as a result of the death. However, in a survival action claim, the personal representative or the decedent’s estate seeks damages owed to the deceased if he or she died before being awarded compensation.
In a wrongful death claim, the claim is directly related to the death of the decedent, while in a survival action claim, their death may not be directly caused by the negligent action.
When someone is negligent and consequential damage occurs, then you have the right to file a claim either on behalf of the decedent in a survival claim or as a family member in a wrongful death claim. It is crucial to seek the services of an experienced South Florida attorney to help clarify any bone of contention and give the plaintiff the correct procedure for a cause of action.
Would you like to file a South Florida wrongful death case? Talk to us today for professional assistance.