100 NE 5th Ave., A2
Delray Beach, FL 33483
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Miami, FL 33137

Wrongful Death Attorneys in Delray Beach, FL

When a loved one dies, nothing can truly make up for your loss.  If your spouse, parent, child or family member died because of the negligence or wrongful act of another, your experience can be especially tragic and unbearable.

You deserve justice for your loss. While no amount of money can replace your loved one, the Florida Wrongful Death Act allows people to sue and recover a monetary award, both for the material support the loved one would have provided and the emotional damage the responsible party caused you.

If you are seeking justice in civil courts after losing a loved one in South Florida, an aggressive wrongful death lawyer can help you obtain the compensation available to you under law.  At McLaughlin Morris, P.A., our experience includes years of fighting for justice for South Florida victims, including the families of those killed by another's negligence or wrongful act.

The statute of limitations for filing a wrongful death lawsuit in Florida is two years from the date fo the death. If you fail to file the claim within the two year period after the death, then the statute of limitations prohibits the deceased's family from ever recovering any money damages or other compensation for the death of a loved one.

With offices in Delray Beach and Miami, we represent the families of wrongful death victims in Palm Beach, Miami-Dade and Broward Counties, including in West Palm Beach, Boca Raton, Miami and Fort Lauderdale. Call (561) 404-0529 today to set up a free consultation.

South Florida Wrongful Death Information Center

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Who Can Sue for Wrongful Death Under Florida Law?

The Florida Wrongful Death Act is found in the state statutes, beginning at Florida Statute § 768.16. Under the law, a lawsuit can be brought by the personal representative of the decedent.  The decedent is the person who died.  The personal representative is either the executor of the decedent's will or, if there is no will, an heir of the decedent.

The beneficiaries are the decedent's surviving spouse, children and, in some cases, parents.  They are called "survivors."  The Act sets what each party may recover:

Any survivor may recover for lost support and services, dating from the time of death, with interest, to project support and services in the future.  Any survivor who paid medical or funeral expenses may also recover for those costs.

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When Can a Lawsuit For a Loved One's Death Be Pursued?

Wrongful death occurs when a person dies due to a party's negligence, intentional wrongful act, or breach of contract, and the person would have been able to sue for damages had she or he survived.

Negligence means a person had a duty to act a certain way or not act a certain way, and failed to do so. Usually it is a duty to act as a reasonable person.  Negligence occurs in many accidents that can result a person dying, including:

Willful acts can include murder or manslaughter, including DUI-related deaths. It is important to remember that criminal cases have a burden of proof of "beyond a reasonable doubt," while civil cases require only a preponderance of the evidence, meaning more likely than not.  Just because the responsible party was not found guilty of a crime, like manslaughter or murder, it does not mean you don't have a case for wrongful death.

Wrongful death can occur on navigable waters and can involve boats or other vessels. In those cases occurring on navigable waters, the Florida Wrongful Death Act expressly applies to wrongful death actions resulting from negligence, wrongful act, default, or breath of contract or warranty. Thus, maritime law does not prohibit the state from creating a remedy for wrongful death for a maritime tort that occurs in the territorial waters of Florida.

So the damages provisions of the federal statute does not apply to a maritime wrongful death case as long as the person who dies is not a seaman, a longshore worker, or any other type of maritime tradesperson. Instead, the wrongful death remedies under Florida law serve as damages for the federal claim. Instead, provisions of the Jones Act, the Longshore and Harbor Workers Compensation Act, and the Death on the High Seas Act may not apply.

On the other hand, if the wrongful death occurs on the high seas or beyond three nautical miles from the shoreline in Florida, then the remedies of the Florida Wrongful Death Act are preempted by the remedies under the federal Death on the High Seas Act.

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Who Pays in a Wrongful Death Action in South Florida?

The responsible party pays.  That party can be a person or a corporation.

However, in most cases, it is an insurance company that ultimately pays, and an insurance company that pays for the legal bills to fight it.  It could be an auto insurance company, if the death was caused by a car accident, a malpractice insurance company, if the death was caused by medical malpractice, or a company with whom the responsible party holds a general liability insurance policy.

Insurance companies have big legal budgets, and will fight wrongful death actions aggressively.  They will seek to limit or deny you the compensation you deserve.  At McLaughlin Morris, P.A., our experience includes not only fighting for victims as personal injury attorneys, but we have also represented insurance companies.  We know how they work, and we will put our knowledge to work for you.

The Florida Wrongful Death Act

Under Florida law, a wrongful death actions arise when a person sustains injuries in an accident that result in the death of that person. The right of action for wrongful death was created by the legislature when it enacted the Florida Wrongful Death Act at §§ 768.16 to 768.26, Fla. Stat. Therefore, the right to sue for money damages in wrongful death cases exists solely by virtue of the statute. All claims are also limited by the Florida Wrongful Death Act.

In a wrongful death case in Florida, the basis for the action is proof that the death was caused by a "wrongful act, negligence, default, or breach of contract or warranty." § 768.19, Fla. Stat. In a negligence case, to establish a cause of action in a wrongful death action, the plaintiff must prove several different elements. The elements of a wrongful death lawsuit in Florida include:

  1. the existence of a legal duty owed to the decedent or an underlying tort (focused on whether the conduct foreseeably creates a broader zone of risk that poses a general threat of harm to others);
  2. the breach of that duty;
  3. legal or proximate cause of death was that breach; and
  4. consequential damages.

Negligence Per Se - Violation of a Statute or Regulatory Provision

Under the first element, proof that the defendant violated a statute or regulatory provision may establish negligence per se when the provision was designed to do one of the following:

  1. protect a particular class of persons from their inability to protect themselves; or
  2. establish a duty to take precautions to guard a certain class of persons from a specific type of injury.

"Unavoidable Accident" in a Wrongful Death Case in Florida

In a wrongful death case, an “unavoidable accident” does not give rise to the breach of duty except when the unavoidable accident was precipitated by the defendant's own preexisting negligence or breach. The “sudden emergency doctrine” applies only to actionable negligence alleged in the wrongful death action to have occurred after the emergency has passed.

History of Wrongful Death Cases in Florida

The statutory scheme for wrongful death cases in Florida designates beneficiaries that were not recognized at common law. Under common law, a paradoxical situation occurred when a negligent party, who would otherwise be liable for damages caused by the negligent conduct, escaped liability because the damages were so serious that it caused death.

While the common law scheme denied recovery for wrongful death, the Florida Wrongful Death Act generally provides that when the death is caused by another’s negligence, wrongful act, breach of contract or warranty, or default, then the person causing the death can still be held liable.

Purpose of the Wrongful Death Statute in Florida

Under § 768.17, Fla. Stat., the public policy of the Florida Wrongful Death Act is to shift the losses resulting from the survivors of the decedent to the wrongdoers. Because the provisions of the Wrongful Death Act of remedial in nature, the provisions must be liberally construed.

The Wrongful Death Act in Florida serves two purposes. First, it substitutes the financial resources of the wrongdoer for the resources of the decedent so that the financial obligations of the decedent can be met. Secondly, it prevents the tortfeasor from avoiding liability for his misconduct that results in death. The Wrongful Death Act in Florida also eliminates multiple suits that could be brought by each survivor in independent actions.

Wrongful Death Action vs. Survival Actions

Wrongful death actions differ from a survival action because the right to recovery for wrongful death is separate from and independent of the type of lawsuit that would have occurred if the injured person had not died.

In fact, the Florida Wrongful Death Act creates a new cause of action for the recovery of damages suffered by the designed beneficiaries instead of the person that died. The wrongful death action is not intended to preserve any rights of the deceased that would have existed had no death occurred. In other words, a wrongful death case is not intended to recover for the injuries of the deceased, but to recovery for losses identified in the statute for the survivors that resulted from the death.  Therefore, even if the death of instantaneous, it does not prevent a wrongful death action.

Although the wrongful death action includes all damages of the survivors and the estate, the survivor’s recovery is separate and distinct from the recovery of the estate. Although the actions are necessarily inconsistent, when the cause of death is disputed by the parties, the plaintiff might plead both a survival action and a wrongful death action.

When a person injury results in death, the action for personal injury does not survive. An action pending at the time of death abates. Under the Florida Wrongful Death Act, the term "abate" operates as a stay of proceedings rather than a dismissal that occurs automatically. See § 768.20. After death, any damages that are caused by the injury resulting in death must be pursued in a wrongful death action brought by the personal representatives of the decedent.

In fact, the survival statute at § 46.021, Fla. Stat., provides that the cause of action does not die with the person. Instead, the case is prosecuted and defended in the same way. After death, the causes are suspended until personal representative of the estate are added to the pending action and have a chance to amend the complaint to allege the damages sought under a wrongful death claim. If the cause of death is disputed by the parties, then the estate might seek survival damages with wrongful death damages alleged in the alternative.

Additional Resources

Florida's Wrongful Death Act - Visit the official internet site of the Florida Legislature. Read the statutory language contained in Florida’s negligence statute under Chapter 768. Also read more about the Wrongful Death Act under F.S. 768.16, including the legislative intent, definitions, right of action, parties, damages, and death of a survivor before judgement.

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Fighting for the Families of Wrongful Death Victims in Palm Beach County

Our firm seeks justice for the deceased victims of negligence, so their families will have the compensation they deserve.  If you have lost a loved one due to the negligence or wrongful act of another in Palm Beach, Broward or Miami-Dade Counties, call McLaughlin Morris, P.A. for an experienced wrongful death lawyer.  

Under Florida law, the statute of limitations for filing a wrongful death claim is two years from the date fo the death. If you fail to file the claim within the two year period after the death, then the statute of limitations prohibits the deceased's family from ever recovering any money damages or other compensation for the death of a loved one in a claim for wrongful death in Florida.

We have offices in Delray Beach and Miami.  Call us today at (561) 404-0529 , 24 hours a day and 7 days a week, to arrange a free consultation.

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