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Force v. Am. Family Mut. Ins. – Sorting Which Survivors Are Entitled to Wrongful Death Damages

After the devastating loss of a loved one due to negligence, survivors may conclude a lawsuit seeking damages for wrongful death is in order. One of the first questions that must be answered is who will bring the action.

Florida, like many other states, has a wrongful death statute with intricate provisions, filled with exclusions and exceptions regarding who can pursue a claim. It tends to be a more complicated matter than one might initially assume.

Before we explore the specifics of Florida law, our Coral Springs wrongful death attorneys wanted to mention the recent decision by the Wisconsin Supreme Court in Force v. Am. Family Mut. Ins. Co.. Like Florida, there are laws specifying who may file a claim. Yet, the state supreme court made an exception contrary to the wording of the statute, finding that to decide otherwise would be a breach of the legislative intent.

This ruling highlights the larger point that wrongful death statutes may be open to some degree of interpretation in cases where it may be warranted. Having an experienced lawyer to help litigate your position is critical.

In the Force case, the decedent was a man killed when his vehicle was struck by an allegedly drunk driver.

After his death, his estranged ex-wife and three non-marital, minor children sought compensation from the at-fault driver, as well as two insurance companies, alleging the other driver’s negligence caused the man’s death.

The defendants filed for summary judgment in the case, arguing the man’s estranged wife hadn’t spoken with or been dependent upon him for years. Because state wrongful death statutes indicate minor children in wrongful death actions are to be paid a set-aside from the surviving spouse’s benefits — and the surviving spouse in this case was entitled to nothing — the defendants argued the children also were entitled to nothing.

The circuit court agreed, and granted summary judgment in favor of the defendants. However, the state supreme court reversed, ruling the unique circumstances of this case allowed the children (or rather, their guardians on their behalf) to file a cause of action against the defendants for wrongful death as if the surviving spouse was not alive. To do otherwise would run contrary to the very purpose of wrongful death litigation, which is to ensure those who were financially and otherwise dependent on the decedent can collect damages from those liable for his or her death.

In Florida, there are two categories of potential claimants in wrongful death cases. The first is the personal representative of the estate, either named by a will or appointed by the court. That person brings action on behalf of the estate, which may include surviving spouses, children, parents and others. The total available damages for this category is somewhat limited.

The second category is when a personal representative brings a lawsuit on behalf of the “survivors.” These individuals may be part of the estate, and therefore would fall into the first category, but they are also entitled to recover different types of damages, which often can result in higher verdicts or damage settlements. Specified “survivors” include (in hierarchical order) spouse, children (with those under 25 entitled to higher damages), parents and dependent blood relatives, including adopted siblings.

This may seem straightforward, but there can be many circumstances that complicate matters. For example, a defendant may challenge the status of a common law marriage, bring up the intent to divorce, a surviving spouse’s remarriage or intention to remarry. There are also many more blended families than there were when the statutes were first created, which can give way to a host of disputes among children and step-children.

Sorting through these issues requires an experienced wrongful death lawyer.

Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights.

Additional Resources:
Force v. Am. Family Mut. Ins. Co., July 28, 2014, Wisconsin Supreme Court

More Blog Entries:
5th DCA: Loss of Consortium Claim Survives Death of Plaintiff, July 15, 2014, Coral Springs Wrongful Death Lawyer Blog

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